victoria verification of identity legislation pack · 2017-10-22 · victoria verification of...
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VictoriaVerification of Identity
legislation packA compilation of rules, requirements and other
resources for paper and electronic conveyancing in Victoria.
ContentsClick on the links below to navigate through the documents.
VOI reasonable steps flowchart
VIC Registrars Requirements
VIC Participation Rules
LIV Verification of Identity (VOI) Checklist
Guide to VOI for paper transactions for conveyancers, lawyers and mortgagees
Guide to verification of identity for people not using a conveyancer or lawyer
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.
Registrar’s requirements for
paper conveyancing transactions
Section 106A Transfer of Land Act 1958
Version 1 – Published 30 September 2015
Land Victoria
Department of Environment, Land, Water and Planning
570 Bourke Street
Melbourne VIC 3000
Phone: (03) 8636 2010
Fax: (03) 8636 2999
Web: www.delwp.vic.gov.au > Property and land titles > Surveying
© The State of Victoria Department of Environment, Land, Water and Planning 2015
This work is licensed under a Creative Commons Attribution 4.0 Australia licence. You are free to re-use the work under that licence, on the
condition that you credit the State of Victoria as author. The licence does not apply to any images, photographs or branding, including the Victorian
Coat of Arms, the Victorian Government logo and the Department of Environment, Land, Water and Planning logo. To view a copy of this licence,
visit http://creativecommons.org/licenses/by/4.0/
Accessibility
If you would like to receive this publication in an alternative format, please telephone the DELWP Customer Service Centre on 136186, email
[email protected] or via the National Relay Service on 133 677 www.relayservice.com.au.
Disclaimer
This publication may be of assistance to you but the State of Victoria and its employees do not guarantee that the publication is without flaw of any
kind or is wholly appropriate for your particular purposes and therefore disclaims all liability for any error, loss or other consequence which may
arise from you relying on any information in this publication.
Registrar’s requirements for paper conveyancing transactions – Version 1 Page 1 of 26
Contents
Registrar’s Requirements 2
1. Preliminary 2
2. Definitions and Interpretation 2
2.1 Definitions 2
2.2 Interpretation 4
3. Verification of Identity and Authority 5
3.1 Verification of Identity 5
3.2 Authority 7
4. Supporting Evidence 8
5. Certifications 8
6. Electronic Instruments 8
7. Lodging Parties 9
8. Client Authorisations 9
9. Certifications under section 74(1A) 10
10. Paper quality and size 10
11. Applications to the Registrar to act 11
Schedule 1 – Verification of Identity 12
Schedule 2 – Identity Agent Certification 18
Schedule 3 – Insurance Rules 19
Schedule 4 – Certification Rules 21
Schedule 5 – Client Authorisation Form 22
Registrar’s requirements for paper conveyancing transactions – Version 1 Page 2 of 26
Registrar’s Requirements
1. Preliminary
These Registrar’s Requirements constitute the Registrar of Titles’ requirements for paper
Conveyancing Transactions determined by the Registrar pursuant to section 106A of the Transfer of
Land Act 1958.
2. Definitions and Interpretation
2.1 Definitions
In these Registrar’s Requirements capitalised terms have the meanings set out below:
ADI or authorised deposit-taking institution has the meaning given to it in the Banking Act 1959 (Cth).
Approved Identity Verifier means a Person appointed by the Registrar to conduct verification of identity
and witness the execution of Instruments and other Documents.
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 Legal Profession Uniform Law (Victoria).
Business Day has the meaning given to it in the ECNL.
Caveat means an Instrument giving notice of a claim to an interest in land that may have the effect of an
injunction to stop the registration of an Instrument in the Register.
Certification Rules means the rules set out in Schedule 4 of these Registrar’s Requirements, as amended
from time to time.
Client means a Person who has or Persons who have appointed an Australian Legal Practitioner, a Law
Practice or a Licensed Conveyancer as their Representative.
Client Agent means a Person authorised to act as the Client’s agent but does not include a Person acting
solely as the Client’s Representative.
Client Authorisation has the meaning given to it in the TLA.
Client Authorisation Form means the form set out in Schedule 5 of these Registrar’s Requirements, as
amended from time to time.
Conveyancing Transaction has the meaning given to it in the ECNL.
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.
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Document has the meaning given to it in the ECNL.
Duty Authority means the Commissioner of State Revenue of Victoria.
ECNL means the Electronic Conveyancing National Law (Victoria), as amended from time to time.
ELN or Electronic Lodgment Network has the meaning given to it in the ECNL.
Folio of the Register has the meaning given to it in the TLA.
Identifier Declaration means the declaration set out in Verification of Identity Standard paragraph 4.
Identity Agent means a Person who is an agent of a Subscriber, a mortgagee represented by a Subscriber,
or an Other Mortgagee, and who:
(a) a Subscriber or mortgagee reasonably believes is reputable, competent and insured in compliance
with Insurance Rule 2; and
(b) is authorised by a 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 the certification set out in Schedule 2, 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.
Instrument has the meaning given to it in the TLA.
Insurance Rules means the rules set out in Schedule 3 of these Registrar’s Requirements, as amended
from time to time.
Law Practice has the meaning given to it in the Legal Profession Uniform Law (Victoria).
Licensed Conveyancer means a Person licensed or registered under the Conveyancers Act 2006.
Lodge has the meaning given to it in the ECNL.
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).
National Credit Code has the meaning given to it in the NCCP Act.
Other Mortgagee means a mortgagee who is not a Subscriber and is not represented by a Subscriber.
Participation Agreement has the meaning given to it in the ECNL.
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Party means each Person who is a party to an Instrument, but does not include a Representative or an
agent.
Person has the meaning given to it in the ECNL.
Person Being Identified means any of the Persons required to be identified under Registrar’s
Requirement 3.1.2 or 3.1.8.
Prescribed Requirement means any Published requirement of the Registrar.
Priority Notice has the meaning given to it in the TLA.
Publish means, for any information, to publish the information on the Registrar’s website.
Registrar has the meaning given to it in the TLA.
Registrar’s Requirements means these requirements made under section 106A of the TLA, as amended
from time to time.
Register has the meaning given to it in the TLA.
Registry Instrument means a paper Instrument.
Representative means an Australian Legal Practitioner, a Law Practice or a Licensed Conveyancer who acts
on behalf of a Client.
Signer means a Person authorised by a Subscriber to sign and, where it is required, certify Instruments
and other Documents on behalf of the Subscriber.
Subscriber means an ADI, an Australian Legal Practitioner, a Law Practice, a Licensed Conveyancer or a
Person who has entered into a Participation Agreement to use an ELN.
TLA means the Transfer of Land Act 1958, as amended from time to time.
Verification of Identity Standard means the standard set out in Schedule 1 of these Registrar’s
Requirements, as amended from time to time.
2.2 Interpretation
In these Registrar’s Requirements, unless a contrary intention is evident:
2.2.1 A reference to these Registrar’s Requirements is a reference to these Registrar’s 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 A reference to a party includes that party’s administrators, successors and permitted assigns.
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2.2.5 If any act pursuant to these Registrar’s 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.
2.2.6 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 requirement or schedule is a reference to a requirement of, or a schedule to,
these Registrar’s Requirements.
2.2.9 A reference to a Registrar’s Requirement includes a reference to all of its sub-requirements.
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
Registrar’s Requirements.
2.2.12 The word “or” is not exclusive.
3. Verification of Identity and Authority
106A(1) The Registrar may from time to time determine requirements for paper conveyancing
transactions, which may include the following—
(a) the verification of identity and authority including any of the following—
(i) the standards to which identity and authority are to be verified;
(ii) the classes of person in respect of whom identity and authority are to be verified;
(iii) the classes of document in relation to which verification of identity and authority
requirements apply;
(iv) the classes of person who can undertake verification of identity and authority;
(v) any supporting evidence and retention requirements
3.1 Verification of Identity
3.1.1 Registrar’s Requirements 3.1.2 to 3.1.7 take effect on 9 November 2015. Registrar’s
Requirements 3.1.8 and 3.1.9 take effect on 1 December 2015.
3.1.2 A Subscriber or an Other Mortgagee must take reasonable steps to verify the identity of:
(a) Clients: each Client or each of their Client Agents; and
(b) Mortgagors:
(i) for a mortgage or variation of mortgage, each mortgagor or each of their agents;
and
(ii) for a mortgage or variation of mortgage, each mortgagor or each of their agents,
where a Subscriber represents a mortgagee - 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
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(iii) for a transfer of mortgage, where section 87B(2)(a) of the TLA is not relied on, each
mortgagor or each of their agents who signed the mortgage sought to be
transferred; and
(iv) for a transfer of mortgage, where a Subscriber represents the transferee
mortgagee and section 87B(2)(a) of the TLA is not relied on, each mortgagor or
each of their agents - however, the Subscriber need not take reasonable steps to
verify the identity of each mortgagor or their agent if the transferee mortgagee has
already 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 a Subscriber giving a (duplicate/paper)
certificate of title to that Client or Client Agent; and
(ii) any existing mortgagor, former mortgagor or their agent, prior to a Subscriber or
an Other Mortgagee giving a (duplicate/paper) certificate of title to that existing
mortgagor, former mortgagor or their agent; and
(d) Signers: each of its Signers, prior to the initial allocation of their authority to act as a
Signer.
3.1.3 For the purposes of complying with Registrar’s Requirements 3.1.2, a Subscriber, or a
mortgagee represented by a Subscriber, or an Other Mortgagee, can either:
(a) apply the Verification of Identity Standard; or
(b) verify the identity of a Person in some other way that constitutes the taking of reasonable
steps.
3.1.4 A Subscriber, or a mortgagee represented by a Subscriber, or an Other Mortgagee 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.
3.1.5 A Subscriber need not re-verify the identity of the Person Being Identified if:
(a) the Subscriber complied with Registrar’s Requirements 3.1.2 within the previous 2 years;
and
(b) the Subscriber takes reasonable steps to ensure that it is dealing with the Person Being
Identified.
3.1.6 If the Verification of Identity Standard is used:
(a) a Subscriber, or a mortgagee represented by a Subscriber, or an Other Mortgagee, 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
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(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; or
(iii) an Other 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.
3.1.7 Subject to Registrar’s Requirement 3.1.4, compliance with the Verification of Identity Standard
by:
(a) a Subscriber and/or its Identity Agent; or
(b) where a Subscriber represents a mortgagee, that mortgagee and/or that mortgagee’s
Identity Agent; or
(c) an Other Mortgagee and/or that mortgagee’s Identity Agent,
will be deemed to constitute taking reasonable steps for the purposes of Registrar’s
Requirements 3.1.2.
3.1.8 A Party who is required to sign an Instrument(s) and who does not have a Representative must:
(a) have their identity verified by an Approved Identity Verifier applying the Verification of
Identity Standard; and
(b) at the same time, have their signing of the Instrument(s) or other Document(s) witnessed
by the Approved Identity Verifier.
3.1.9 Registrar’s Requirement 3.1.8 does not apply where the Party is:
(a) a Subscriber; or
(b) a mortgagor and:
(i) the mortgagee is an ADI, or
(ii) the mortgagee is a Person who has entered into a Participation Agreement; or
(iii) the mortgagee has a Representative acting on behalf of the mortgagee.
3.2 Authority
3.2.1 This requirement takes effect on 9 November 2015.
3.2.2 For each Conveyancing Transaction a Representative must take reasonable steps to verify that
its Client is a legal Person and has the right to enter into the Conveyancing Transaction.
3.2.3 A mortgagee, or a Representative of a mortgagee, must, for each mortgage, variation of
mortgage or transfer of mortgage, take reasonable steps to verify that the mortgagor is a legal
Person and has the right to enter into the mortgage.
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4. Supporting Evidence
106A(1) The Registrar may from time to time determine requirements for paper conveyancing
transactions, which may include the following—
(b) the retention of documents supporting or authenticating instruments generally, including
periods of retention
4.1 This requirement takes effect on 9 November 2015.
4.2 A Representative or, where there is no Representative, a Party must retain the evidence
supporting an Instrument or other Document for at least seven years from the date of
Lodgment of the Instrument or other 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.
5. Certifications
106A(1) The Registrar may from time to time determine requirements for paper conveyancing
transactions, which may include the following—
(c) setting out matters to be certified or relating to the certification of matters for the purposes of
conveyancing transactions, including any of the following—
(i) the form of certifications;
(ii) the classes of person who may certify those matters;
(iii) any supporting evidence and retention requirements
5.1 This requirement takes effect on 3 April 2017.
5.2 Only Subscribers can provide certifications.
5.3 A Subscriber must comply with the Certification Rules.
6. Electronic Instruments
106A(1) The Registrar may from time to time determine requirements for paper conveyancing
transactions, which may include the following—
(d) the classes of instrument that must be lodged using an ELN
6.1 This requirement takes effect on 1 August 2016.
6.2 Where the mortgagee is an ADI:
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(a) a discharge of mortgage signed on or after 1 August 2016 must be Lodged using an ELN,
except where the discharge of mortgage is to be Lodged with any transfer of land or
mortgage for the same folio(s) of the Register; and
(b) a mortgage to which the National Credit Code applies signed on or after 1 August 2016
must be Lodged using an ELN, except where the mortgage is to be Lodged with any
discharge of mortgage or transfer of land for the same folio(s) of the Register.
6.3 Registrar’s Requirement 6.2 does not apply if an ELN is not available and has not been available
for one clear Business Day.
7. Lodging Parties
106A(1) The Registrar may from time to time determine requirements for paper conveyancing
transactions, which may include the following—
(e) the classes of person who must lodge specified classes of instrument
7.1 This requirement takes effect on 1 March 2016.
7.2 A discharging mortgagee or its Representative must Lodge a discharge of mortgage signed on or
after 1 March 2016, except where the discharge of mortgage is to be Lodged with any transfer
of land or mortgage for the same folio(s) of the Register.
8. Client Authorisations
106A(1) The Registrar may from time to time determine requirements for paper conveyancing
transactions, which may include the following—
(f) client authorisations, including any of the following—
(i) the form of a client authorisation;
(ii) the classes of instrument to which a client authorisation applies;
(iii) any supporting evidence and retention requirements
8.1 This requirement takes effect on 3 April 2017.
8.2 Where a Client is a Party to an Instrument or other Document, and is required to sign that
Instrument or other Document, the Client’s Representative must sign that Instrument or other
Document on behalf of the Client.
8.3 A Representative must:
(a) use the Client Authorisation Form for any Client Authorisation it enters into; and
(b) except for Caveats and Priority Notices, for which a Client Authorisation is optional, enter
into a Client Authorisation with its Client before the Representative signs any Instrument
or other Document; and
(c) comply with the Client Authorisation and act in accordance with its terms; and
Registrar’s requirements for paper conveyancing transactions – Version 1 Page 10 of 26
(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 the Client Authorisation is signed by the
Representative’s Client or their Client Agent.
9. Certifications under section 74(1A)
106A(1) The Registrar may from time to time determine requirements for paper conveyancing
transactions, which may include the following—
(g) the classes of mortgagee able to certify the matters specified under section 74(1A)
74(1A) The Registrar may register a mortgage if the mortgagee has—
(a) signed the mortgage; and
(b) certified that—
(i) the mortgagee holds a mortgage granted by the mortgagor; and
(ii) the mortgage held by the mortgagee is in the same terms as the mortgage
lodged for registration.
9.1 This requirement takes effect on 3 April 2017.
9.2 The classes of mortgagee able to certify the matters specified under section 74(1A) of the TLA
are:
(a) a mortgagee who is an ADI; or
(b) a mortgagee who is a Person who has entered into a Participation Agreement to use an
ELN; or
(c) a mortgagee who has a Representative acting on behalf of the mortgagee.
9.3 Where a mortgagee satisfies Registrar’s Requirement 9.2, that mortgagee or, where the
mortgagee is represented, its Representative must:
(a) sign any mortgage in which the mortgagee is a Party; and
(b) ensure that the mortgagor grants a mortgage on the same terms as the mortgage signed
by, or on behalf of, the mortgagee; and
(c) ensure that it holds the mortgage granted by the mortgagor; and
(d) provide Certification 5 of the Certification Rules.
10. Paper quality and size
106A(1) The Registrar may from time to time determine requirements for paper conveyancing
transactions
10.1 This requirement takes effect on the day these Registrar’s Requirements are published.
10.2 Any Instrument lodged with the Registrar must be:
(a) printed on;
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(i) white;
(ii) A4 size paper;
(iii) with a minimum weight of 80 grams per square metre; and
(b) have clear margins of not less than 10 millimetres and not more than 15 millimetres on all
borders.
10.3 Printing must be:
(a) single-sided; and
(b) in black text; and
(c) have a font size equivalent to Arial 10 point or Times New Roman 12 point; and
(d) in portrait orientation; and
(e) have all pages numbered and total pages specified.
10.4 Handwriting must be:
(a) in block letters; and
(b) clear and legible; and
(c) in black ink or blue ink.
10.5 Signatures must be in black ink or blue ink.
10.6 Erasures, correction products, over-typing or over-printing must not be used on Instruments
11. Applications to the Registrar to act
106A(1) The Registrar may from time to time determine requirements for paper conveyancing
transactions
11.1 This requirement takes effect on the day these Registrar’s Requirements are published.
11.2 If a Person requests the Registrar to do an act or perform a duty that Person must apply to the
Registrar.
11.3 If no form of application is prescribed by any regulations made under the TLA or any other
legislation, or is approved by the Registrar, the applicant must apply to the Registrar in writing:
(a) stating what the Registrar is requested to do and the relevant section of the TLA or any
other legislation; and
(b) describing the land by reference to a folio of the Register and, if only part of the land is
affected, define that part; and
(c) stating the name and address of the applicant; and
(d) setting out the registered number of any Instrument or plan affected by the application ;
and
(e) setting out any other particulars that are required by the relevant section of the TLA or
any other legislation; and
(f) signed by the applicant or the applicant’s Representative.
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Schedule 1 – Verification of Identity
This definition replaces that in the following Verification of Identity Standard for the purposes of a paper
Conveyancing Transaction:
Person Being Identified means any of the Persons required to be identified under Registrar’s Requirement
3.1.2 or 3.1.8.
Registrar’s requirements for paper conveyancing transactions – Version 1 Page 13 of 26
Verification of Identity Standard
1 Definitions
In this Verification of Identity Standard capitalised terms have the meanings set out below:
ADI or 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
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.
ECNL means the Electronic Conveyancing National Law as adopted or implemented in a Jurisdiction
by the Application Law, as amended from time to time.
Identifier Declaration means the declaration set out in Verification of Identity Standard paragraph
4.
Identity Declarant means a Person providing an Identifier Declaration.
Identity Verifier means the Person conducting the verification of identity in accordance with this
Verification of Identity Standard.
Individual has the meaning given to it in the ECNL.
Registrar’s requirements for paper conveyancing transactions – Version 1 Page 14 of 26
Land Council Officeholder means a chairperson or deputy chairperson of an Australian land
council or land and sea council established under any Commonwealth, State or Territory law.
Land Titles Legislation has the meaning given to it in the ECNL.
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 Officeholder means a chief executive officer or deputy chief executive officer
of a local government organisation.
Nurse means a Person registered under any Commonwealth, State or Territory law as a
practitioner in the nursing and midwifery profession.
Person has the meaning given to it in the ECNL.
Person Being Identified means any of the Persons required to be identified under
Participation Rule 6.5.1.
Photo Card is a card issued by the Commonwealth or any State or Territory showing a photograph
of the holder and enabling the holder to evidence their age and/or their identity.
Police Officer means an officer of any Commonwealth, State or Territory police service.
Priority/Settlement Notice has the meaning given to it in the Land Titles Legislation of the
Jurisdiction in which the land the subject of the Conveyancing Transaction is situated.
Public Servant means an employee or officer of the Commonwealth, a State or a Territory.
Record has the meaning given to it in the ECNL.
Relative means a Person’s spouse or domestic partner or a child, grandchild, sibling, parent or
grandparent of the Person or of the Person’s spouse or domestic partner.
State means New South Wales, Queensland, South Australia, Tasmania, Victoria and Western
Australia.
Statutory Declaration has the meaning given to it in the ECNL.
Territory has the meaning given to it in the ECNL.
Verification of Identity Standard means this verification of identity standard, as amended from
time to time.
2 Face-to-face regime
2.1 The verification of identity must be conducted during a face-to-face in-person interview between
the Identity Verifier and the Person Being Identified.
2.2 Where Documents containing photographs are produced by the Person Being Identified, the
Identity Verifier must be satisfied that the Person Being Identified is a reasonable likeness (for
example the shape of his or her mouth, nose, eyes and the position of his or her cheek bones) to
the Person depicted in those photographs.
3 Categories of identification Documents and evidence retention
3.1 At the face-to-face in-person interview described in paragraph 2.1, the Identity Verifier must
ensure that the Person Being Identified produces original Documents in one of the Categories in
the following table, starting with Category 1.
3.2 The Identity Verifier must be reasonably satisfied that a prior Category cannot be met before
using a subsequent Category.
Registrar’s requirements for paper conveyancing transactions – Version 1 Page 15 of 26
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.
Registrar’s requirements for paper conveyancing transactions – Version 1 Page 16 of 26
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, Public Servant or Police Officer.
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, Public Servant or Police
Officer.
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
Registrar’s requirements for paper conveyancing transactions – Version 1 Page 17 of 26
(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 of 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
The Identity Verifier must:
(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
The Identity Verifier must:
(a) confirm from the [registered] power of attorney the details of the attorney and the
donor; and
(b) take reasonable steps to establish that the Conveyancing Transaction(s) is authorised by the
power of attorney; and
(c) comply with Verification of Identity Standard paragraph 5.
[Note: body corporate includes an incorporated association.]
8 (Deleted)
9 (Deleted)
10 Further checks
The Identity Verifier must undertake further steps to verify the identity of the Person Being Identified
and/or the Identity Declarant where:
(a) the Identity Verifier knows or ought reasonably to know that:
(i) any identity Document produced by the Person Being Identified and/or the Identity
Declarant is not genuine; or
(ii) any photograph on an identity Document produced by the Person Being 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
(b) it would otherwise be reasonable to do so.
Registrar’s requirements for paper conveyancing transactions – Version 1 Page 18 of 26
Schedule 2 – Identity Agent Certification
“I, [full name of the 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 current 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 certificate; 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 Page number in set of copies
e.g. Australian Passport 1
*Delete where Identity Agent not requested to witness or is not legally entitled to witness the document.
Registrar’s requirements for paper conveyancing transactions – Version 1 Page 19 of 26
Schedule 3 – Insurance Rules
1 [not used]
2 Identity Agent insurance
2.1 Each Identity Agent must maintain professional indemnity insurance:
(a) with an Approved Insurer; and
(b) for an insured amount of at least $1.5 million per claim (including legal Costs); and
(c) having an excess per claim of no greater than $20,000; and
(d) having an annual aggregate amount of not less than $20,000,000; and
(e) which includes coverage for verification of identity for the purposes of these Registrar’s
Requirements; and
(f) the terms of which do not limit compliance with Insurance Rules 2.1(a) to (e).
2.2 Each Identity Agent must maintain fidelity insurance:
(a) with an Approved Insurer; and
(b) for an insured amount of at least $1.5 million per claim (including legal Costs); and
(c) having an excess per claim of no greater than $20,000; and
(d) having an annual aggregate amount of not less than $20,000,000; and
(e) which provides coverage for third party claims arising from dishonest and fraudulent
acts; and
(f) which includes coverage for verification of identity for the purposes of these Registrar’s
Requirements; and
(g) the terms of which do not limit compliance with Insurance Rules 2.2(a) to (f).
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:
(a) with an Approved Insurer; and
(b) for an insured amount of at least $1.5 million per claim (including legal Costs); and
(c) having an excess per claim of no greater than $20,000; and
(d) having an annual aggregate amount of not less than $20,000,000; and
(e) which provides coverage for third party claims arising from dishonest and fraudulent
acts; and
(f) which includes coverage for verification of identity for the purposes of these Registrar’s
Requirements; and
(g) the terms of which do not limit compliance with Insurance Rules 2.3(a) to (f).
Registrar’s requirements for paper conveyancing transactions – Version 1 Page 20 of 26
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 Identity Agents
Despite Insurance Rule 2, the following Persons need not take out any insurance to become or remain
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 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.
5 Compliance
An Identity Agent must comply with any requirements set by its insurer.
6 Proof of insurance
An Identity Agent must provide evidence of insurance to the Registrar as required by the Registrar.
Registrar’s requirements for paper conveyancing transactions – Version 1 Page 21 of 26
Schedule 4 – Certification Rules
The Subscriber must provide those of the following certifications that are required when signing
each Instrument or Document:
1 The Subscriber has taken reasonable steps to verify the identity of the [transferor/transferee/
mortgagee/ mortgagor/caveator/applicant].
2 The Subscriber holds a properly completed Client Authorisation for the Conveyancing
Transaction including this Registry Instrument or Document.
3 The Subscriber has retained the evidence supporting this Registry Instrument or Document.
4 The Subscriber 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 Subscriber, or the Subscriber 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.
6 The Subscriber 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.
Registrar’s requirements for paper conveyancing transactions – Version 1 Page 22 of 26
Schedule 5 – Client Authorisation Form
These definitions replace those in the following Client Authorisation Form for the purposes of a paper
Conveyancing Transaction:
Insurance Rules means the rules set out in Schedule 3 of these Registrar’s Requirements, as amended
from time to time.
Registry Instrument means a paper Instrument.
Subscriber means an Australian Legal Practitioner, a Law Practice, or a Licensed Conveyancer who acts on
behalf of a Client.
CLIENT AUTHORISATION
When this form is signed, the Subscriber 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.
Subscriber Reference: __________________________
CLI
EN
T D
ET
AIL
S
CLIENT 1 CLIENT 2
NAME
ACN/ARBN
ADDRESS
TR
AN
SA
CT
ION
DE
TA
ILS
AUTHORITY TYPE � SPECIFIC AUTHORITY
(transaction details
below)
� STANDING AUTHORITY
ends on revocation or expiration
date:….……/…….…../………….
� BATCH AUTHORITY
(attach details)
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
� WITHDRAW
CAVEAT
� PRIORITY/
SETTLEMENT
NOTICE
� DISCHARGE/
RELEASE OF
MORTGAGE
� WITHDRAW
CAVEAT
� OTHER � OTHER
ADDITIONAL
INSTRUCTIONS
CLI
EN
T A
UT
HO
RIS
AT
ION
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 Subscriber 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.
Registrar’s requirements for paper conveyancing transactions – Version 1 Page 23 of 26
I AUTHORISE the Subscriber 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
ER
E
DATE / /
SIG
N H
ER
E
CLIENT /
CLIENT
AGENT
NAME:
CAPACITY:
CLIENT /
CLIENT AGENT
NAME:
CAPACITY:
SU
BS
CR
IBE
DE
DE
TA
ILS
AN
D S
IGN
ING
SUBSCRIBER 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 SUBSCRIBER OR AGENT IF APPLICABLE:
DATE / /
SIG
N H
ER
E
DATE / /
SIG
N H
ER
E
SIGNATORY
NAME:
SIGNATORY
NAME:
CAPACITY: CAPACITY:
Terms of this Client Authorisation
1. What is Authorised
The Client authorises the Subscriber 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 Subscriber signs on the Client’s behalf in accordance with this Client
Authorisation.
Registrar’s requirements for paper conveyancing transactions – Version 1 Page 24 of 26
2. Mortgagees
Where:
(a) the Subscriber represents the Client in the Client’s capacity as mortgagee; and
(b) the Client represents to the Subscriber that the Client has taken reasonable steps to verify the
identity of the mortgagor
the Client indemnifies the Subscriber 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 Subscriber 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 Subscriber 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:
Agent means a Person authorised by a Subscriber to act as the Subscriber’s agent. For the avoidance of
doubt this can include an Identity Agent.
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 Subscriber 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 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 Subscriber
acting solely as the Client’s Representative.
Conveyancing Transaction has the meaning given to it in the ECNL.
Discharge/Release of Mortgage means a Registry Instrument that discharges or releases a Mortgage.
Registrar’s requirements for paper conveyancing transactions – Version 1 Page 25 of 26
Document has the meaning given to it in the ECNL.
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 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.
Insurance Rules has the meaning given to it in the Participation Rules.
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.
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 Registry Instrument 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.
Person has the meaning given to it in the ECNL.
Personal Information has the meaning given to it in the Privacy Act 1988 (Cth).
Prescribed Requirement means any Published requirement of the Registrar that Subscribers 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.
Publish means, for any information, to publish the information on the Registrar’s website.
Registrar has the meaning given to it in the ECNL.
Registry Instrument has the meaning given to it in the ECNL.
Representative means a Subscriber who acts on behalf of a Client.
Specific Authority means an authority for the Subscriber to act for the Client in completing the
Conveyancing Transactions described in this Client Authorisation.
Standing Authority means an authority for the Subscriber to act for the Client for a period of time set out in
this Client Authorisation.
Subscriber is the Person named in this Client Authorisation and has the meaning given to it in the ECNL or
for a paper Conveyancing Transaction is an Australian Legal Practitioner or a Licensed Conveyancer.
Registrar’s requirements for paper conveyancing transactions – Version 1 Page 26 of 26
Titles Register has the meaning given to it in the ECNL.
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
www.delwp.vic.gov.au
Electronic Conveyancing National Law (Victoria)
Participation Rules
Determined by the Registrar of Titles
Version 3
Published: 30 September 2015
Take effect: 9 November 2015
Victorian Participation Rules – Version 3 – September 2015 Page 2 of 50
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 .............................................................................................................. 14
5.2 Subscriber as principal ...................................................................................................... 14
5.3 Subscriber who acts as Representative ............................................................................ 15
5.4 Responsible Subscribers ................................................................................................... 15
5.5 Subscriber as trustee and partnerships ............................................................................. 15
6 GENERAL OBLIGATIONS .............................................................................................. 15
6.1 Ensure User compliance .................................................................................................... 15
6.2 Keep Subscriber System Details complete and up-to-date ............................................... 16
6.3 Client Authorisation ............................................................................................................ 16
6.4 Right to Deal ...................................................................................................................... 16
6.5 Verification of identity ......................................................................................................... 16
6.6 Supporting evidence .......................................................................................................... 18
6.7 Compliance with laws and Participation Rules .................................................................. 19
6.8 Compliance with directions ................................................................................................ 19
6.9 Assistance .......................................................................................................................... 19
6.10 Protection of information .................................................................................................... 19
6.11 Information ......................................................................................................................... 19
6.12 No assignment ................................................................................................................... 19
6.13 Mortgages .......................................................................................................................... 20
6.14 Signing of Client Authorisations ......................................................................................... 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 ............................................................................................................................... 21
7.5 Digital Certificates .............................................................................................................. 22
7.6 (Deleted) ............................................................................................................................ 22
Victorian Participation Rules – Version 3 – September 2015 Page 3 of 50
7.7 Notification of Jeopardised Conveyancing Transactions ................................................... 22
7.8 Revoking authority ............................................................................................................. 23
7.9 Compromised Security Items ............................................................................................. 23
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 .................................................................................. 24
9.3 Termination at direction of Registrar .................................................................................. 24
9.4 Rights and obligations on suspension, termination or resignation .................................... 24
9.5 Further steps by Subscriber ............................................................................................... 25
10 COMPLIANCE ................................................................................................................. 25
11 PROHIBITIONS ............................................................................................................... 25
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 ........................................................................... 40
SCHEDULE 8 – VERIFICATION OF IDENTITY STANDARD ........................................................ 43
SCHEDULE 9 – IDENTITY AGENT CERTIFICATION .................................................................. 50
Victorian Participation Rules – Version 3 – September 2015 Page 4 of 50
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 or 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.
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.
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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 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.
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 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 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.
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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, any taxes, levies, imposts, charges
and duties in connection with the electronic Registry Instrument 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.
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.
Electronic Workspace means a shared electronic workspace generated by the ELN.
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
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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 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.
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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).
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
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(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 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 any of the Persons required to be identified under
Participation Rule 6.5.1.
Personal Information has the meaning given to it in the Privacy Act 1988 (Cth).
PKI or 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.
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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;
(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 and, where it is
required, certify 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.
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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 has the meaning given to it in the ECNL.
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
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(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
Participation Rules.
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
Participation Rules.
2.2.12 The word “or” is not exclusive.
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.
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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 a corporation 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
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(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,
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
State or a Territory; or
(e) a fit and proper Person for the purpose of performing duties in relation to the credit
activities authorised by an Australian Credit Licence,
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.
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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.
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.
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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 and Priority/Settlement Notices, for which a Client Authorisation
is optional, enter into a Client Authorisation with its Client before the Subscriber
Digitally Signs any 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.
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:
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(i) 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) 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 giving 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 giving a (duplicate/paper) certificate of title to that existing
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
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(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 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:
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(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, 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.
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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 Signing of Client Authorisations
Where the Subscriber is a Representative, the Subscriber must take reasonable steps to
ensure that any Client Authorisation is signed by the Subscriber’s Client or their Client
Agent.
7 OBLIGATIONS REGARDING SYSTEM SECURITY AND INTEGRI TY
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.
Victorian Participation Rules – Version 3 – September 2015 Page 21 of 50
7.2 Users
The Subscriber must:
(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(a); and
(b) take reasonable steps to ensure that the Signer is not or has not been subject to:
(i) an Insolvency Event within the last 5 years; or
(ii) a conviction of fraud or an indictable offence or any offence for dishonesty
against any law in connection with business, professional or commercial
activities; or
(iii) disqualification from managing a body corporate under the Corporations Act;
or
Victorian Participation Rules – Version 3 – September 2015 Page 22 of 50
(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
State or a Territory,
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 Transa ctions
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.
Victorian Participation Rules – Version 3 – September 2015 Page 23 of 50
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.
Victorian Participation Rules – Version 3 – September 2015 Page 24 of 50
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 comply with the Certification Rules.
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, terminati on 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.
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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 paragraph (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
The Subscriber must:
(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:
Victorian Participation Rules – Version 3 – September 2015 Page 26 of 50
(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.
Victorian Participation Rules – Version 3 – September 2015 Page 27 of 50
SCHEDULE 1 – ADDITIONAL PARTICIPATION RULES
None.
Victorian Participation Rules – Version 3 – September 2015 Page 28 of 50
SCHEDULE 2 – AMENDMENT TO PARTICIPATION RULES PROCE DURE
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.
Victorian Participation Rules – Version 3 – September 2015 Page 29 of 50
SCHEDULE 3 – CERTIFICATION RULES
The Subscriber must provide those of the following certifications that are required when
Digitally Signing each electronic Registry Instrument or electronic Document:
1 The Subscriber has taken reasonable steps to verify the identity of the
[transferor/transferee/ mortgagee/ mortgagor/caveator/applicant].
2 The Subscriber holds a properly completed Client Authorisation for the Conveyancing
Transaction including this Registry Instrument or Document.
3 The Subscriber has retained the evidence supporting this Registry Instrument or
Document.
4 The Subscriber 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 Subscriber, or the Subscriber 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.
6 The Subscriber 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.
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SCHEDULE 4 - CLIENT AUTHORISATION FORM
CLIENT AUTHORISATION When this form is signed, the Subscriber 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.
Subscriber Reference:__________________________
CLI
EN
T D
ET
AIL
S CLIENT 1 CLIENT 2
NAME
ACN/ARBN
ADDRESS
TR
AN
SA
CT
ION
DE
TA
ILS
AUTHORITY TYPE � SPECIFIC AUTHORITY
(transaction details below)
� STANDING AUTHORITY
ends on revocation or expiration date:___/____/___
� BATCH AUTHORITY
(attach details)
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
� WITHDRAW CAVEAT
� PRIORITY/ SETTLEMENT NOTICE
� DISCHARGE/ RELEASE OF MORTGAGE
� WITHDRAW CAVEAT
� OTHER � OTHER
ADDITIONAL INSTRUCTIONS
CLI
EN
T A
UT
HO
RIS
AT
ION
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 Subscriber 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 Subscriber 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
ER
E
DATE / /
SIG
N H
ER
E
CLIENT/CLIENT AGENT NAME:
CLIENT/CLIENT AGENT NAME:
Victorian Participation Rules – Version 3 – September 2015 Page 31 of 50
CAPACITY:
CAPACITY:
SU
BS
CR
IBE
R D
ET
AIL
S A
ND
SIG
NIN
G
SUBSCRIBER 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 SUBSCRIBER OR AGENT IF APPLICABLE:
DATE / /
SIG
N H
ER
E
DATE / /
SIG
N H
ER
E
SIGNATORY NAME:
SIGNATORY NAME:
CAPACITY: CAPACITY:
Terms of this Client Authorisation
1 What is Authorised
The Client authorises the Subscriber 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 Subscriber signs on the Client’s
behalf in accordance with this Client Authorisation.
2 Mortgagees
Where:
(a) the Subscriber represents the Client in the Client’s capacity as mortgagee; and
(b) the Client represents to the Subscriber that the Client has taken reasonable steps to
verify the identity of the mortgagor
Victorian Participation Rules – Version 3 – September 2015 Page 32 of 50
the Client indemnifies the Subscriber 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 Subscriber 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 Subscriber submit to the non-exclusive
jurisdiction of the courts of that place.
6 Meaning of Words Used in this Client Authorisatio n
In this Client Authorisation, capitalised terms have the meaning set out below:
Agent means a Person authorised by a Subscriber to act as the Subscriber’s agent. For
the avoidance of doubt this can include an Identity Agent.
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 Subscriber 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 in the Titles
Register.
Client means the Person or Persons named in this Client Authorisation.
Victorian Participation Rules – Version 3 – September 2015 Page 33 of 50
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.
Conveyancing Transaction has the meaning given to it in the ECNL.
Discharge/Release of Mortgage means a Registry Instrument that discharges or
releases a Mortgage.
Document has the meaning given to it in the ECNL.
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 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.
Insurance Rules has the meaning given to it in the Participation Rules.
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.
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 Registry Instrument 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.
Person has the meaning given to it in the ECNL.
Personal Information has the meaning given to it in the Privacy Act 1988 (Cth).
Victorian Participation Rules – Version 3 – September 2015 Page 34 of 50
Prescribed Requirement means any Published requirement of the Registrar that
Subscribers 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.
Publish means, for any information, to publish the information on the Registrar’s website.
Registrar has the meaning given to it in the ECNL.
Registry Instrument has the meaning given to it in the ECNL.
Representative means a Subscriber who acts on behalf of a Client.
Specific Authority means an authority for the Subscriber to act for the Client in
completing the Conveyancing Transactions described in this Client Authorisation.
Standing Authority means an authority for the Subscriber to act for the Client for a period
of time set out in this Client Authorisation.
Subscriber is the Person named in this Client Authorisation and has the meaning given to
it in the ECNL or for a paper Conveyancing Transaction is an Australian Legal Practitioner
or a Licensed Conveyancer.
Titles Register has the meaning given to it in the ECNL.
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.
Victorian Participation Rules – Version 3 – September 2015 Page 35 of 50
SCHEDULE 5 – COMPLIANCE EXAMINATION PROCEDURE
1 Power to request information and Documents
1.1 For the purposes of Section 34(2) of the ECNL, 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 If the Subscriber fails, without reasonable excuse, to comply with a notice given under
paragraph 1.2, the Registrar may do one or more of the following as the Registrar
considers appropriate:
(a) restrict the Subscriber’s use of the ELN; or
(b) suspend the Subscriber; or
(c) terminate the Subscriber.
2 Inspection and retention of Documents
2.1 If a 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 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.
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3 Return of retained Documents
3.1 The Registrar or the Registrar’s delegate must as soon as reasonably practicable return
the Document 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 a 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 a 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.
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SCHEDULE 6 – INSURANCE RULES
1 Subscriber insurance
1.1 Each Subscriber must maintain professional indemnity insurance:
(a) with an Approved Insurer; and
(b) for an insured amount of at least $1.5 million per claim (including legal Costs); and
(c) having an excess per claim of no greater than $20,000; and
(d) having an annual aggregate amount of not less than $20,000,000; and
(e) which includes coverage for Conveyancing Transactions; and
(f) the terms of which do not limit compliance with Insurance Rules 1.1(a) to (e).
1.2 Each Subscriber must maintain fidelity insurance:
(a) with an Approved Insurer; and
(b) for an insured amount of at least $1.5 million per claim (including legal Costs); and
(c) having an excess per claim of no greater than $20,000; and
(d) having an annual aggregate amount of not less than $20,000,000; and
(e) which provides coverage for third party claims arising from dishonest and fraudulent
acts; and
(f) which includes coverage for Conveyancing Transactions; and
(g) the terms of which do not limit compliance with Insurance Rules 1.2(a) to (f).
1.3 If a Subscriber does not comply with Insurance Rules 1.1 and 1.2, the Subscriber must
maintain professional indemnity insurance:
(a) with an Approved Insurer; and
(b) for an insured amount of at least $1.5 million per claim (including legal Costs); and
(c) having an excess per claim of no greater than $20,000; and
(d) having an annual aggregate amount of not less than $20,000,000; and
(e) which provides coverage for third party claims arising from dishonest and fraudulent
acts; and
(f) which includes coverage for Conveyancing Transactions; and
(g) the terms of which do not limit compliance with Insurance Rules 1.3(a) to (f).
Victorian Participation Rules – Version 3 – September 2015 Page 38 of 50
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) with an Approved Insurer; and
(b) for an insured amount of at least $1.5 million per claim (including legal Costs); and
(c) having an excess per claim of no greater than $20,000; and
(d) having an annual aggregate amount of not less than $20,000,000; and
(e) which includes coverage for verification of identity for the purposes of these
Participation Rules; and
(f) the terms of which do not limit compliance with Insurance Rules 2.1(a) to (e).
2.2 Each Identity Agent must maintain fidelity insurance:
(a) with an Approved Insurer; and
(b) for an insured amount of at least $1.5 million per claim (including legal Costs); and
(c) having an excess per claim of no greater than $20,000; and
(d) having an annual aggregate amount of not less than $20,000,000; and
(e) which provides coverage for third party claims arising from dishonest and fraudulent
acts; and
(f) which includes coverage for verification of identity for the purposes of these
Participation Rules; and
(g) the terms of which do not limit compliance with Insurance Rules 2.2(a) to (f).
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:
(a) with an Approved Insurer; and
(b) for an insured amount of at least $1.5 million per claim (including legal Costs); and
(c) having an excess per claim of no greater than $20,000; and
(d) having an annual aggregate amount of not less than $20,000,000; and
(e) which provides coverage for third party claims arising from dishonest and fraudulent
acts; and
Victorian Participation Rules – Version 3 – September 2015 Page 39 of 50
(f) which includes coverage for verification of identity for the purposes of these
Participation Rules; and
(g) the terms of which do not limit compliance with Insurance Rules 2.3(a) to (f).
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.
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.
Victorian Participation Rules – Version 3 – September 2015 Page 40 of 50
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
Conveyancing Transaction; or
(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.
2 Termination Events
The following are Termination Events:
(a) the Registrar knows or has reasonable grounds to believe that the Subscriber:
(i) is in material breach of any of the Subscriber’s obligations under the
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
Conveyancing Transaction; or
(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
Victorian Participation Rules – Version 3 – September 2015 Page 41 of 50
(b) the Subscriber fails, without reasonable excuse, to produce Documents within a time
specified in a written request from the Registrar; or
(c) 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 including but not limited to a notice served under the
Compliance Examination Procedure; or
(d) the Subscriber’s purported payment of any Land Registry Fees is unpaid or
dishonoured and the Subscriber fails to remedy the non-payment within a
reasonable period of time; or
(e) 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.
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:
Victorian Participation Rules – Version 3 – September 2015 Page 42 of 50
(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 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 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.
Victorian Participation Rules – Version 3 – September 2015 Page 43 of 50
SCHEDULE 8 – VERIFICATION OF IDENTITY STANDARD
1 Definitions
In this Verification of Identity Standard capitalised terms have the meanings set out below:
ADI or 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
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
Victorian Participation Rules – Version 3 – September 2015 Page 44 of 50
(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.
ECNL means the Electronic Conveyancing National Law as adopted or implemented in a
Jurisdiction by the Application Law, as amended from time to time.
Identifier Declaration means the declaration set out in Verification of Identity Standard
paragraph 4.Identity Declarant means a Person providing an Identifier Declaration.
Identity Verifier means the Person conducting the verification of identity in accordance
with this Verification of Identity Standard.
Individual has the meaning given to it in the ECNL.
Land Council Officeholder means a chairperson or deputy chairperson of an Australian
land council or land and sea council established under any Commonwealth, State or
Territory law.
Land Titles Legislation has the meaning given to it in the ECNL.
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 Officeholder means a chief executive officer or deputy chief
executive officer of a local government organisation.
Nurse means a Person registered under any Commonwealth, State or Territory law as a
practitioner in the nursing and midwifery profession.
Person has the meaning given to it in the ECNL.
Person Being Identified means any of the Persons required to be identified under
Participation Rule 6.5.1.
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.
Victorian Participation Rules – Version 3 – September 2015 Page 45 of 50
Public Servant means an employee or officer of the Commonwealth, a State or a
Territory.
Record has the meaning given to it in the ECNL.
Relative means a Person’s spouse or domestic partner or a child, grandchild, sibling,
parent or grandparent of the Person or of the Person’s spouse or domestic partner.
State means New South Wales, Queensland, South Australia, Tasmania, Victoria and
Western Australia.
Statutory Declaration has the meaning given to it in the ECNL.
Territory has the meaning given to it in the ECNL.
Verification of Identity Standard means this verification of identity standard, as
amended from time to time.
2 Face-to-face regime
2.1 The verification of identity must be conducted during a face-to-face in-person interview
between the Identity Verifier and the Person Being Identified.
2.2 Where Documents containing photographs are produced by the Person Being Identified,
the Identity Verifier must be satisfied that the Person Being Identified is a reasonable
likeness (for example the shape of his or her mouth, nose, eyes and the position of his or
her cheek bones) to the Person depicted in those photographs.
3 Categories of identification Documents and eviden ce 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.
Victorian Participation Rules – Version 3 – September 2015 Page 46 of 50
Category Minimum Document Requirements For Persons who are Australian citizens or resident s:
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 resi dents:
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.
Victorian Participation Rules – Version 3 – September 2015 Page 47 of 50
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, Public Servant or Police
Officer.
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
Victorian Participation Rules – Version 3 – September 2015 Page 48 of 50
(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, Public Servant or Police Officer.
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
The Identity Verifier must:
(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.
Victorian Participation Rules – Version 3 – September 2015 Page 49 of 50
7 Body Corporate as attorney
The Identity Verifier must:
(a) confirm from the [registered] power of attorney the details of the attorney and the
donor; and
(b) take reasonable steps to establish that the Conveyancing Transaction(s) is
authorised by the power of attorney; and
(c) comply with Verification of Identity Standard paragraph 5.
[Note: body corporate includes an incorporated association.]
8 (Deleted)
9 (Deleted)
10 Further checks
The Identity Verifier must undertake further steps to verify the identity of the Person Being
Identified and/or the Identity Declarant where:
(a) the Identity Verifier knows or ought reasonably to know that:
(i) any identity Document produced by the Person Being Identified and/or the
Identity Declarant is not genuine; or
(ii) any photograph on an identity Document produced by the Person Being
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
(e) it would otherwise be reasonable to do so.
Victorian Participation Rules – Version 3 – September 2015 Page 50 of 50
SCHEDULE 9 – IDENTITY AGENT CERTIFICATION
“I, [full name of the 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 current 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 certificate; 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
Page number in set of copies
E.g. Australian Passport 1
*Delete where Identity Agent not requested to witness or is not legally entitled to witness the
document.
MORE DETAILS OVER …
VERIFICATION OF IDENTITY (VOI) CHECKLIST
OTHER DETAILS OF FILE TO WHICH VOI RELATES
Name:
Description:
Verification of Identity Standard (see below) Previous verification within 2 years (go to page 2)
Other reasonable steps (go to page 2) Mortgagee etc verifying mortgagor (go to page 2)
A — INDIVIDUAL
Face to face interview
Sighted the originals of the documents listed below (VOI Documents)
Copied the VOI Documents and certified the copies as true copies of the originals
Retained copies of the VOI Documents (electronically or in safe custody – not solely in the client’s file) Note any that are not copied or retained (retain copies for 7 years)
Compared photo ID with facial features of the person being identified (noting shape of mouth, nose, eyes, position of cheek bones etc.)
B — CORPORATIONS & INCORPORATED ASSOCIATIONS
Existence & identity confirmed by: current ASIC search other (specify)
Established who is authorised to sign by: s129(2) Corporations Act other (specify)
Verified the identity of each individual signing or affixing the seal (complete extra checklists as required)
C — ATTORNEYS
Details as shown in the Power of Attorney (Power):
* of donor/principal
* of the Attorney
* date of Power
Confirmed that this transaction is authorised by the Power (Note: enduring powers must be for financial matters)
Copied the Power and certified the copy as a true copy of the original
Verified the identity of each Attorney (complete extra checklists as required)
D — DOCUMENTS USED TO IDENTIFY ACCORDING TO THE VOI STANDARD
• The documents you need to use to identify the individual under each category are marked in grey.
• Start with category 1. If the Individual cannot meet category 1, move to category 2, and so on.
• Documents must be current (or for Australian passport expired w/in 2 yrs) Aust
ralia
n or
fo
reig
n pa
sspo
rt
Aust
ralia
n dr
iver
lic
ence
or p
hoto
ca
rd
Mar
riage
or
Chan
ge o
f nam
e ce
rtific
ate
(if
requ
ired)
Med
icar
e,
Cent
relin
k or
DV
A ca
rd
Full
birth
, ci
tizen
ship
or
des
cent
ce
rtific
ate
Full
birth
ce
rtific
ate
Anot
her f
orm
of
gov
ernm
ent
issu
ed p
hoto
ID
Fore
ign
pass
port
only
Anot
her f
orm
of
gov
ernm
ent
issu
ed ID
Category 1
Category 2
Category 3
Category 4: Option (a)
Category 4: Option (b)
Category 5(a): non Australian citizens
Category 5(b): non Australian citizens
E — ARE FURTHER STEPS REQUIRED TO VERIFY?
If there are non-genuine identity documents, lack of reasonable likeness with photo ID, discrepancies between documents and person or between signatures etc. insert or annex details and describe the extra steps taken.
Print Full Name of Identity Verifier
Signature of Identity Verifier
FULL NAME OF THE PERSON BEING IDENTIFIED:
DATE THE IDENTIFICATION WAS PERFORMED:
FILE NO:
MEANS OF IDENTIFICATION (tick at least one)
IF VERIFICATION OF IDENTITY STANDARD USED (tick each completed item)
NOVEMBER 2015
VOI CHECKLIST (CONTINUED)
IF VERIFICATION BY OTHER REASONABLE STEPS I.E. NOT THE VOI STANDARD
©LAW INSTITUTE OF VICTORIA NOVEMBER 2015
Checklist of factors to be considered
Complete one form for each person. Circle or highlight relevant items. ('Positive' factors may indicate that a lesser degree of VOI is required.)
Factor Positive Negative Insert any relevant detail
Acquiring estate or interest
Disposing of an interest Caution
Disposing apparently at full value
Disposing not at full value – arm’s length Warning
– related party Caution
Client is (also) mortgaging to a bank etc.
Client is a mortgagor from a private lender Caution
Client is a mortgagee
Client has/will produce paper Title
Person’s identity verified (within last 2 years)
Person – is your relative
– is personal friend
– is existing client (2+ years)
– is overseas/interstate/remote
– is aged/infirm/immobile
Have you met face to face (if so, when)
List of VOI Documents sighted
If documents have been produced to you which are not sufficient to satisfy the VOI Standard, they may still be relevant to prove that reasonable steps were taken. List below any VOI
Documents sighted, noting if they were originals, copies or certified copies and whether or not the person identified had similar facial features to the person in any photograph, whether
you compared signatures etc. If possible copy all documents, and certify each copy as a true copy of the original.
Documents sighted Original Certified Copy Compared signature
Comment
Australian passport – current/if expired, when?
Foreign passport
Driver’s licence – current/if expired, when?
Change of name certificate
Marriage certificate
Full birth certificate
Extract of birth
Other government photo ID document
Other government non photo ID document
Identity Agent Certification in approved form
Other
Verification of Authority/Right to Deal
If a Corporation, Association or Attorney, the existence, identity and authority of the persons authorised to affix the seal/the Attorney must also be verified (see sections B & C on page 1)
If previous verification within 2 years:
Date/year of previous verification:
If not verified by you, by whom?
If a mortgage transaction and you rely on a mortgagee or identity agent to identify mortgagor (Tick one)
Received and checked Identity Agent Certification in approved form
Received written confirmation from mortgagee that it has applied the VOI Standard
Satisfied myself that the mortgagee had taken reasonable steps by (insert details)
This guide explains the Registrar’s verification of identity requirements for paper conveyancing transactions.
Who does this guide apply to? This guide applies to conveyancers, lawyers and mortgagees, who are required to take reasonable steps to verify the identity of their client, mortgagor, person to whom a Certificate of Title is provided and any person authorised to sign documents on their behalf.
What are the verification of identity requirements? The verification of identity requirements for paper conveyancing transactions are set out in the Registrar’s Requirements for paper conveyancing (Registrar’s Requirements). The requirements are essentially the same as those for electronic conveyancing transactions. The Australian Registrars’ National Electronic Conveyancing Council (ARNECC) has published Model Participation Rules Guidance Note #2 - Verification of Identity, which includes:
What is verification of identity?
Why is verification of identity required?
When is verification of identity required?
How verification of identity is to be carried out, including how verifications can be conducted overseas
Frequently asked questions
The ARNECC guidance note is at www.arnecc.gov.au>Publications>MPR Guidance Notes.
Non-represented party must have their identity verified If any party to a paper conveyancing transaction is a non-represented party, they must have their identity verified by Australia Post. Australia Post will also witness the non-represented party signing any conveyancing documents. For additional information, refer to Guide to verification of identity for people not using a conveyancer or lawyer available at www.delwp.vic.gov.au>Property and land titles>Forms, guides and fees>Verification of identity.
Frequently asked questions The following questions and answers are provided in addition to those in the ARNECC guidance note.
Q1 Where can I get a copy of the Registrar’s Requirements?
A1 The Registrar’s Requirements are available at www.delwp.vic.gov.au>Property and land titles>Property information>Publications
Guide to verification of identity for paper conveyancing transactions for conveyancers, lawyers and mortgagees
Guide to verification of identity for paper conveyancing transactions for conveyancers, lawyers and mortgagees
Guide to verification of identity for paper conveyancing transactions for conveyancers, lawyers and mortgagees Page | 2
Q2 Are there any guides available on verification of identity?
A2 ARNECC has published the following five guidance notes:
Guidance Note #1 – Client Authorisation
Guidance Note #2 – Verification of Identity
Guidance Note #3 – Certifications
Guidance Note #4 – Right to Deal
Guidance Note #5 – Retention of Evidence
The ARNECC guidance notes are an excellent resource, available at www.arnecc.gov.au>Publications>MPR Guidance Notes.
The ARNECC guidance note on verification of identity should be read in conjunction with these frequently asked questions.
The Registrar of Titles (the Registrar) has also published three guides on verification of identity:
Guide to verification of identity for paper conveyancing transactions for conveyancers, lawyers and mortgagees (this guide)
Guide to verification of identity for people not using a conveyancer or lawyer
Guide to conveyancers and lawyers when dealing with people who are not represented
These guides are available at www.delwp.vic.gov.au>Property and land titles>Forms, guides and fees>Verification of identity.
Q3 When does the requirement to verify a client’s identity take effect in Victoria?
A3 The Registrar has issued the Registrar’s Requirements (see Q1), which among other things, formalises verification of identity requirements. However, verification of identity is not new. Prudent practice already required conveyancers and lawyers to take reasonable steps to verify their client’s identity. The Registrar’s Requirements apply to any instrument signed on or after 9 November 2015 and require a conveyancer or lawyer to take reasonable steps to verify the identity of their client in a conveyancing transaction.
Q4 Does the requirement to verify the identity of clients apply to paper instruments lodged or signed on or after 9 November 2015?
A4 For parties represented by a conveyancer or lawyer, the requirement to take reasonable steps to verify identity applies to instruments signed on or after 9 November 2015. The requirement for non-represented parties applies to instruments signed on or after 1 December 2015.
Q5 Will a conveyancer or lawyer have to verify the identity of clients who have already signed paper instruments that may not be settled or lodged until after 9 November 2015?
A5 It is already prudent practice for a lawyer or conveyancer to identify their clients. The Registrar has merely formalised this practice. The formalised requirement applies to all paper instruments signed on or after 9 November 2015. If the party is not represented, the requirement applies to instruments signed on or after 1 December 2015.
Q6 When did the requirement for mortgagees to identify their mortgagor come into effect in Victoria?
A6 The legislative requirement came into effect in September 2014.
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Q7 What steps do a conveyancer or lawyer need to take to verify the identity of their client (or a mortgagee to identify a mortgagor)?
A7 The conveyancer, lawyer or mortgagee is required to take reasonable steps to verify the identity of their client and/or a mortgagor, in both an electronic and a paper conveyancing transaction. How this is done is up to the conveyancer, lawyer or mortgagee, as long as the steps taken are reasonable in the circumstances. The conveyancer, lawyer or mortgagee may undertake the verification of identity or it can be done by an agent (including an Identity Agent).
Q8 In what circumstances will conveyancers, lawyers and mortgagees be required to undertake verification of identity?
A8 These are set out in Requirement 3.1.2 of the Registrar’s Requirements and include taking reasonable steps to identify clients, mortgagors, people authorised to sign and certify instruments and people to whom Certificates of Title are provided.
Q9 Must the Verification of Identity Standard in Schedule 1 of the Registrar’s Requirements be used to verify the identity of clients and mortgagors?
A9 It is not a requirement to use the Verification of Identity Standard to verify the identity of clients and mortgagors. The requirement is for the conveyancer, lawyer or mortgagee to take reasonable steps to verify their client’s or mortgagor’s identity. What those steps are in each particular circumstance is for a conveyancer, lawyer or mortgagee to decide. They can take their own reasonable steps or they can use the Verification of Identity Standard.
Q10 Can an employee of the conveyancer, lawyer or mortgagee conduct verification of identity?
A10 This is a business decision for the conveyancer, lawyer or mortgagee to make. The obligation is on a conveyancer, lawyer or mortgagee to take reasonable steps to verify the identity of their client or mortgagor. How this is done is up to the conveyancer, lawyer or mortgagee, as long as the steps taken are reasonable in the circumstances.
Q11 Is a conveyancer or lawyer required to use an Identity Agent to have their client’s identity verified (or does a mortgagee need to use an Identity Agent to identify a mortgagor)?
A11 The requirement is for a conveyancer, lawyer or mortgagee to take reasonable steps to verify the identity of their client or mortgagor. How this is done is up to the conveyancer, lawyer or mortgagee, as long as the steps taken are reasonable in the circumstances. The conveyancer, lawyer or mortgagee may undertake the verification of identity or it can be done by an agent (including an Identity Agent).
Q12 What is an Identity Agent?
A12 An Identity Agent is an agent of the conveyancer, lawyer or mortgagee, who is reputable, competent and maintains the level of insurance set out in Schedule 3 of the Registrar’s Requirements, and is authorised by the conveyancer, lawyer or mortgagee to conduct verification of identity.
Q13 What is an Approved Identity Verifier?
A13 An Approved Identity Verifier is an organisation approved by the Registrar for the purpose of verifying the identity of non-represented parties. Australia Post is undertaking this role for the Registrar.
Q14 To what paper instruments does verification of identity apply? Is it only transfers, mortgages and caveats, as it is in PEXA?
A14 The requirement relates to all types of paper instruments that can be lodged with the Registrar under the Transfer of Land Act 1958, Subdivision Act 1988 or any other legislation.
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Q15 Does verification of identity apply to both the transferor and the transferee?
A15 Yes. The requirement is for the conveyancer or lawyer to take reasonable steps to verify the identity of their client. This will apply to both the transferor and transferee – whichever party is their client.
Q16 If a conveyancer or lawyer signs a caveat on behalf of a caveator, is it the person who signs the caveat or the caveator that must have their identity verified?
A16 It is the caveator who must have their identity verified. The requirement is for a conveyancer or lawyer to take reasonable steps to verify the identity of a client, regardless of whether the caveat is signed by the client or by the conveyancer or lawyer on behalf of the client.
Q17 Do the verification of identity requirements extend to agreements under the Water Act 1989, for example community agreements and rights of access agreements? These agreements are signed by all landowners but the application forms to lodge the agreements are usually signed by the conveyancer or lawyer? Does verification of identity need to be undertaken for each landowner?
A17 The requirement is for a conveyancer or lawyer to take reasonable steps to verify the identity of a client. The conveyancer or lawyer must verify the identity of the person or people they represent. In relation to the types of agreement discussed, it is a matter for the conveyancer or lawyer to determine who is the client. Once this question is answered, the scope of the requirement should be clear.
Q18 Do the verification of identity requirements extend to section 173 agreements under the Planning and Environment Act 1987? These agreements are entered into between the council, the landowner and in some cases third parties; but, the application forms to lodge the agreements are usually only signed by the council, by the CEO or a delegate. Does verification of identity need to be undertaken for everyone that signs the agreements? Or only on the councillors, CEO or council delegate signing the application form?
A18 The requirement is for a conveyancer or lawyer to take reasonable steps to verify the identity of a client. The conveyancer or lawyer must verify the identity of the person or people they represent. In relation to the type of agreement discussed, it is a matter for the conveyancer or lawyer to determine who is the client. Once this question is answered, the scope of the requirement should be clear.
Q19 Are there exemptions to the verification of identity requirements in the case of entities, such as statutory authorities or local government bodies?
A19 There are no exemptions to the verification of identity requirements. The requirement is that a conveyancer, lawyer or mortgagee take reasonable steps to verify the identity of their client or mortgagor. That requirement applies to all clients or mortgagors, whether they are individuals or bodies corporate.
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Q20 What steps does a conveyancer, lawyer or mortgagee have to take to verify the identity of a corporate client?
A20 The requirement is that a conveyancer, lawyer or mortgagee take reasonable steps to verify the identity of their client or mortgagor. If a client or mortgagor is a body corporate or an incorporated association, these steps could include all of the following:
confirming the existence of the body corporate
taking reasonable steps to establish the person who is authorised to sign on behalf of the body corporate or witness the affixing of any seal
verifying the identity of the individual(s) who are authorised to sign or affix the seal on behalf of the body corporate.
Q21 Requirement 3.1.2(c) of the Registrar’s Requirements relates to verifying the identity of people to whom Certificates of Title are provided. How does this apply to settlements?
A21 Registrar's Requirement 3.1.2(c), which mirrors Participation Rule 6.5.1(c), was designed to only apply when a Certificate of Title is being given to a client or a mortgagor. It does not apply to parties participating in a settlement, including when a settlement agent is acting for a party in order to collect the Certificate of Title and transfer documentation.
Q22 If a Power of Attorney is used, is it only the attorney that needs to have their identity verified? Or does the principal also have to have their identity verified?
A22 If a Power of Attorney is used, the conveyancer, lawyer or mortgagee must take reasonable steps to verify the attorney’s identity and authority.
If the attorney is an individual, the steps could include all of the following:
confirming the details of the person appointing the attorney and the attorney from the power of attorney
taking reasonable steps to establish that the conveyancing transaction is authorised by that power of attorney
verifying the identity of the attorney.
If the attorney is a body corporate, the steps could include all of the following:
confirming the details of the person appointing the attorney and the attorney from the power of attorney
taking reasonable steps to establish that the conveyancing transaction is authorised by that power of attorney
confirming the existence of the body corporate
taking reasonable steps to establish the person who is authorised to sign on behalf of the body corporate or witness the affixing of any seal
verifying the identity of the individuals who are authorised to sign or affix the seal on behalf of the body corporate.
It would be up to the conveyancer, lawyer or mortgagee to decide whether or not to verify the identity of the person giving the power.
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Q23 Is the person who verifies the client’s or mortgagor’s identity also required to witness the instrument signed by the client or mortgagor?
A23 Except for non-represented parties, the person conducting the verification of identity is not required to witness the execution of the instrument. However, it might be considered prudent practice to undertake the two actions at the same time, whenever possible. It is expected that the conveyancer, lawyer or mortgagee ensures the document is actually signed by their client or mortgagor, whose identity has been verified.
Q24 Will a conveyancer, lawyer or mortgagee have to re-verify the identity of their client or mortgagor for whom they have acted in a previous transaction?
A24 The client or mortgagor need not be re-verified if the conveyancer, lawyer or mortgagee has taken reasonable steps to do both of the following:
verify the identity of their client or mortgagor within the previous two years
ensure that the client or mortgagor they are dealing with is one and the same as the client or mortgagor whose identity was already verified by them.
After two years, it is up to the conveyancer or lawyer to assess what is reasonable in the circumstances.
Q25 Can a conveyancer, lawyer or mortgagee rely on a verification of identity of their client or mortgagor conducted by (or on behalf of) another conveyancer, lawyer or mortgagee?
A25 The requirement is for the conveyancer, lawyer or mortgagee to take reasonable steps to verify their client’s or mortgagor’s identity. What those steps are in each particular circumstance is for a conveyancer, lawyer or mortgagee to decide.
Q26 Will the identity of a long-standing client or mortgagor need to be verified?
A26 The requirement is for the conveyancer or lawyer or mortgagee to take reasonable steps to verify their client’s or mortgagor’s identity. What those steps are in each particular circumstance is for the conveyancer, lawyer or mortgagee to decide.
Q27 What happens if a client or mortgagor requires urgent assistance and there is no time to verify their client’s or mortgagor’s identity?
A27 The requirement is for the conveyancer, lawyer or mortgagee to take reasonable steps to verify their client’s or mortgagor’s identity. What those steps are in each particular circumstance is up to the conveyancer, lawyer or mortgagee to decide.
Q28 What should a conveyancer, lawyer or mortgagee do if they suspect the identity documents provided are not genuine or do not represent a reasonable likeness to the person being identified?
A28 The requirement is for the conveyancer, lawyer or mortgagee to take reasonable steps to verify the identity of their client or mortgagor. When doubt arises, or should reasonably have arisen in relation to a transaction and/or a client’s or mortgagor’s identity, the conveyancer, lawyer or mortgagee should seek further evidence or make further enquiries. If after having done so the conveyancer, lawyer or mortgagee is not satisfied, then the conveyancer, lawyer or mortgagee should decline to act further in the transaction.
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Q29 What steps do a conveyancer, lawyer or mortgagee need to take to verify the identity of their client or mortgagee who is overseas?
A29 The conveyancer, lawyer or mortgagee needs to decide what steps to take to verify the identity of their client or mortgagor, having regard to the available services and options under the circumstances.
One option may be to use the services of an Australian Embassy, High Commission or Consulate – for more information see the ARNECC MPR Guidance Note #2, coupled with additional steps in order for the conveyancer, lawyer or mortgagee to be reasonably confident in their client’s identity.
Another option would be for an international financial institution or law practice to use their overseas personnel to conduct verification of identity.
Q30 Will the Registrar require proof that the identification has occurred and, if so, what paperwork is needed for this?
A30 The Registrar does not require evidence of verification of identity at lodgement; however, the Registrar may, when examining a dealing, call for production of the evidence.
Q31 What are the requirements for retention of evidence supporting verification of identity?
A31 Evidence must be retained by the conveyancer, lawyer or mortgagee for seven years from the date of lodgement of the instrument.
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.
Q32 How can the verification of identity evidence be stored?
A32 The evidence can be retained in a range of ways. It could be stored electronically and/or by an agent on behalf of a conveyancer, lawyer or mortgagee. However, the medium and means in which documents supporting the conveyancing transaction are to be retained is to be determined by a conveyancer, lawyer or mortgagee in light of the possible need to produce those documents as evidence to a court. Regardless of the way in which it is stored, evidence should be accessible, legible and secure.
Further information is contained in the ARNECC MPR Guidance Note #5 - Retention of Evidence.
Q 33 If the Registrar calls for production of supporting evidence of verification of identity, and it is found that a party has not had their identity verified, does this invalidate the instrument?
A33 If the Registrar, when examining a lodged but unregistered dealing, calls for production of evidence of verification of identity and the evidence could not be produced, then the Registrar will most likely refuse to continue processing the dealing unless or until he can be satisfied that it is one made by the party named – see section 27AB of the Transfer of Land Act 1958.
The Registrar has no intention to routinely call for production of evidence of verification of identity. It would only occur if some other element of the dealing concerned the Registrar.
Q34 What are the certification requirements and when do they come into effect?
A34 The certification requirements are set out in Schedule 4 of the Registrar’s Requirements and essentially relate to verification of identity, client authorisation, retention of evidence and correctness. Certifications are scheduled to come into effect in May 2017.
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Q35 Is there any transition period for verification of identity?
A35 There is no transition period. Prudent practice already required conveyancers, lawyers and mortgagees to take reasonable steps to verify their client’s and/or a mortgagor’s identity and authority.
Q36 What does the reference to a client’s or mortgagor’s ‘authority’ mean? Is this verifying that the person signing the instrument is authorised to do so? Or, is this a reference to a requirement to use the Client Authorisation Form?
Q36 Authority relates to a client’s or mortgagor’s right to enter into a conveyancing transaction. This is commonly referred to as the client’s or mortgagor’s 'right to deal'. Verification of the right to deal is closely linked to verification of identity. This is dealt with in requirement 3.2 of the Registrar's Requirements and further information is contained in the ARNECC Guidance Note #4 - Right to Deal.
Q37 What happens if a party is not represented by a conveyancer or lawyer?
A37 On or after 1 December 2015, a party to a conveyancing transaction who is not represented by a conveyancer or lawyer must have their identity verified by Australia Post (see Guide to verification of identity for people not using a conveyancer or lawyer available at www.delwp.vic.gov.au>Property and land titles>Forms, guides and fees>Verification of identity) who, at the same time, will witness that party’s signing of the conveyancing document.
A38 What happens if the conveyancer, lawyer or mortgagee incorrectly identifies their client or mortgagor?
A38 It depends on the outcome of the conveyancing transaction to which their client or mortgagor was a party. If questions are raised about the validity of the instrument signed by that client or mortgagor, in most cases it will be for a court to decide.
A39 What are the risks of verification of identity?
A39 Any risk relates more to the absence or lack of due diligence when conducting verification of identity. For example, further enquiries should be made when doubt arises, or should reasonably have arisen in relation to a transaction and a person’s identity.
The Registrar’s Requirements require further steps to be taken when:
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
it is otherwise reasonable to take further steps.
Some circumstances when it may also be reasonable to take further steps could include:
If the client or mortgagor has very limited identity documents without explanation
when the conveyancer, lawyer or mortgagee becomes aware the identity documents have been cancelled
if the identity documents and the instrument appear inconsistent, such as differing signatures
when an agent is used and there appears to be inconsistencies in the supporting documentation they provide 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, mortgagor or third parties, and using electronic verification services.
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Some circumstances may not be directly linked to verification of identity but may raise awareness that extra care should be taken in relation to a particular transaction and the person being identified. For example, the transaction is urgent; the conveyancer, lawyer or mortgagee doubts the veracity of the instructions; the transaction involves a non-standard mortgage of an unencumbered title; or, the client has limited English. While 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.
Q40 Are there any privacy concerns and how can these be mitigated?
A40 As with other aspects of a conveyancing transaction, retention of personal information gives rise to privacy obligations. Storage of a client’s or mortgagor’s personal information is not a new obligation. Conveyancers, lawyers and mortgagees are already required to retain their client’s or mortgagor’s records and files for seven years.
Further information Registrar’s Requirements for paper conveyancing transactions under Section 106A of the Transfer of Land Act 1958 at www.delwp.vic.gov.au>Property and land titles>Property information>Publications
Guide to verification of identity for people not using a conveyancer or lawyer at www.delwp.vic.gov.au>Property and land titles>Forms, guides and fees>Verification of identity
Guide to conveyancers and lawyers when dealing with people who are not represented at www.delwp.vic.gov.au>Property and land titles>Forms, guides and fees>Verification of identity
Australian Registrars’ National Electronic Conveyancing Council’s Model Participation Rules Guidance Note 2 – Verification of Identity available at www.arnecc.gov.au >Publications>MPR Guidance Notes
Contact us For location and contact details, refer to www.delwp.vic.gov.au>Property and land titles>Forms, guides and fees>Contact Land Victoria.
© The State of Victoria Department of Environment, Land, Water and Planning 2016
This work is licensed under a Creative Commons Attribution 4.0 International licence To view a copy of this licence, visit http://creativecommons.org/licenses/by/4.0/
This guide explains the Registrar’s verification of identity requirements for people not using a conveyancer or lawyer (non-represented parties).
Who is a non-represented party? A non-represented party is a person who is required to sign a conveyancing document and is not using (represented by) a conveyancer or lawyer. A party may be an individual, a company, an owners corporation, an incorporated association, a council, a government body or statutory agency.
These requirements do not apply to you if you are a mortgagor and the lender (mortgagee) is one of the following:
an Approved Deposit-taking Institution (ADI), which includes most banks and other large mortgage lenders
a PEXA subscriber
represented by a conveyancer or lawyer.
In this situation, the mortgagee or their representative or agent will be responsible for verifying your identity.
Note: these requirements do not apply if a company, council, government body or statutory agency has appointed its in-house Australian Legal Practitioner or Licensed Conveyancer as its Representative. In this case, the Registrar’s requirements for paper conveyancing transactions 3.1.2(a) applies. For details of the Registrar’s requirements for paper conveyancing transactions see ‘Further information’ at the end of this guide.
What are the verification of identity requirements? An individual
If an individual is not using a conveyancer or lawyer, and is a party to a conveyancing document, they must:
have their identity verified by Australia Post
at the same time have Australia Post witness their signing of any conveyancing document (e.g. transfer of land, mortgage of land, survivorship application etc.) and where there is provision for a witness signature on the conveyancing document, Australia Post will also sign that document as a witness.
A company
If a company is not using a conveyancer or lawyer and it is a party to a conveyancing document, it must:
have the identity of each signatory verified by Australia Post
at the same time have Australia Post witness the signing of any conveyancing document (e.g. transfer of land, application to register plan, etc.)
Guide to verification of identity for people
not using a conveyancer or lawyer
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ensure the form of execution by the company is only one of the following involving the company’s appointed officers:
– execution using a common seal – form signed by two directors, or a director and a secretary, or a sole director and secretary, or a sole director
– execution without using a common seal – form signed by two directors, or a director and a secretary, or a sole director and secretary, or a sole director.
If the form of execution is not as above, the company will need to seek the assistance of a conveyancer or lawyer to complete the conveyancing transaction and conduct verification of the company’s signatories’ identities.
A current company search of a non-represented company must be provided with the conveyancing documents when lodged at Land Victoria.
A council, government body or statutory agency
If a council, government body or statutory agency is not using a conveyancer or lawyer and is a party to a conveyancing document, it must:
have the identity of each signatory verified by Australia Post; and
at the same time have Australia Post witness the signing of any conveyancing document and, where there is provision for a witness on the conveyancing document, sign the conveyancing document as a witness.
Signatories completing a council’s, government body’s or statutory agency’s execution may include a person who is required to sign a conveyancing document as an officer or delegate of the transacting party; or, a person who witnesses the affixing of a council’s or other body’s common seal in the usual manner.
A signatory who has had their identity verified by Australia Post (as above) within the previous two years need not be re-verified provided that on any subsequent conveyancing document signed by that signatory the following is provided below the execution – ‘My identity has been verified by Australia Post on <date> - RECEIPT No. <Unique Seq. No>’.
An owners corporation
If an owners corporation is not using a conveyancer or lawyer and is a party to a conveyancing document, it must:
have the identity of each signatory verified by Australia Post; and
at the same time have Australia Post witness the signing of any conveyancing document and, where there is provision for a witness on the conveyancing document, sign the conveyancing document as a witness.
Signatories completing an owners corporation execution may include individual and corporate members of the owners corporation who are required to witness the affixing of the common seal; or, other individuals or corporations to whom the owners corporation has delegated any signing power or function, e.g. committee members, an owners corporation manager, a lot owner or office holder of the owners corporation.
Any corporate signatory must follow the above requirements for companies.
An incorporated association
If an incorporated association is not using a conveyancer or lawyer and is a party to a conveyancing document, it must:
have the identity of each signatory verified by Australia Post; and
at the same time have Australia Post witness the signing of any conveyancing document and, where there is provision for a witness on the conveyancing document, sign the conveyancing document as a witness.
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Signatories completing an incorporated association’s execution may include office holders, public officers, or committee members executing with a common seal or without a common seal in accordance with the Associations Incorporation Reform Act 2012 and the rules of the incorporated association. Customer Information Bulletin Edition 141 June 2013 (available at www.delwp.vic.gov.au/property>Land titles>Customer information bulletins) contains information on acceptable forms of execution for incorporated associations).
What you are required to do to have your identity verified by Australia Post For any conveyancing document that is signed by you on or after 1 December 2015, you must do all of the following.
Download and complete the Non-represented party (Victoria only) Land title identity verification form (EIS outlets only) available at www.delwp.vic.gov.au/property>Forms, guides and fees>Verification of identity. Do not sign the form. Do not use any other identity verification form for use by a person represented by a conveyancer or lawyer, or for any mortgagee’s purposes.
Choose an Australia Post EIS outlet that provides a verification of identity service. You can find your nearest Australia Post Express Identity Service (EIS) outlet at www.auspost.com.au>Locations & Hours. Enter your postcode and select ‘search’. No appointment is necessary.
Attend a face-to-face interview at your chosen Australia Post outlet, where you will need to have the following with you:
– your conveyancing documents – not signed by you
– the completed Non-represented party (Victoria only) Land title identity verification form (EIS outlets only) – not signed
– your original identity documents – photocopies of identity documents will not be accepted for identification purposes.
You must produce the minimum identity documents in one of the categories of identification documents as set out in the Non-represented party (Victoria only) Land title identity verification form (EIS outlets only).
If you are an Australian citizen or resident, category 1 should be used first, then 2, then 3, then 4. The highest category available must be used. A lower level category can only be used if you do not possess the documents required for the higher category, the documents have expired or the document is an Australian passport that has been expired for a period of more than two years.
If you are not an Australian citizen or resident then category 6 must be used.
Sign the Non-represented party (Victoria only) Land title identity verification form (EIS outlets only) and your conveyancing document in front of an Australia Post officer.
What Australia Post will do Australia Post will:
verify your identity and take copies of the identity documents you produce
witness you signing any conveyancing documents
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sign the conveyancing document as witness, if there is provision for a witness on the conveyancing document(s)
take a photograph of you
return the completed conveyancing document(s) to you
return the Non-represented party (Victoria only) Land title identity verification form (EIS outlets only) to you
give you a Land Title ID Check receipt for the payment of fees
provide Land Victoria with copies of the identity documentation and a copy of the signed conveyancing document(s), together with your photograph
charge you a fee for completing the verification of identity and witnessing you signing any conveyancing documents.
Please note: Australia Post and Land Victoria comply with all privacy laws relating to your personal information.
What next? You need to attach the Land Title ID Check receipt, or a copy of a receipt, to your conveyancing document(s). You should lodge your conveyancing document(s), with the original or copy receipt attached, at Land Victoria.
If the transaction involves another party, it may be their role to lodge the documents. In any case, the document(s) lodged with Land Victoria must have attached to them the Land Title ID Check receipt or a copy of a receipt.
For further information on a particular conveyancing document, please refer to the relevant Land Victoria guide available at www.delwp.vic.gov.au>Property and land titles>Forms, guides and fees.
Exceptions Australia Post will not verify your identity if you:
cannot meet categories 1, 2, 3, 4 or 6 of the identification documents
are outside Australia
are an attorney under a power of attorney
In these cases, you will need to seek the assistance of a conveyancer or lawyer to complete your conveyancing transaction and conduct your verification of identity.
Supporting evidence to be retained You must retain any evidence supporting a conveyancing document for at least seven years from the date the documents are lodged at Land Victoria. This may include:
the original identity documents provided to Australia Post
the original Land Title ID Check receipt, or a copy of a receipt
any evidence required by the State Revenue Office
any evidence supporting your or any other party’s right to enter into the conveyancing transaction.
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Frequently asked questions The following questions and answers are provided for your information.
Q1 Why do I have to have my identity verified?
A1 Verification of identity is important to ensure that the correct person is dealing with land. The Registrar of
Titles (the Registrar) has issued Version 1 of the Registrar’s requirements for paper conveyancing transactions, which, among other things, formalises verification of identity requirements. Requirement 3.1.8 requires a non-represented party to have their identity verified by Australia Post. The Registrar’s requirements for paper conveyancing transactions are available at www.delwp.vic.gov.au/publications.
Q2 When did the requirement to have my identity verified take effect in Victoria?
A2 The requirement took effect on 1 December 2015.
Q3 Does the requirement to have my identity verified apply to paper conveyancing documents lodged or signed on or after 1 December 2015?
A3 The requirement applies to paper conveyancing documents signed on or after 1 December 2015.
Q4 To what paper conveyancing documents does verification of identity apply?
A4 The requirement relates to all types of paper instruments that can be lodged with the Registrar under the Transfer of Land Act 1958, Subdivision Act 1988 or any other legislation.
Q5 What do I need to do if I have signed a conveyancing document prior to 1 December 2015 but the transaction will not be settled or lodged until after 1 December 2015? Will I need to have my identity verified by Australia Post and the conveyancing document re-signed?
A5 The requirement applies to conveyancing documents signed on or after 1 December 2015. For conveyancing documents signed prior to this date there is no requirement to have your identity verified by Australia Post. There is also no requirement for you to have your conveyancing document re-signed.
Q6 Is Australia Post required to witness my signing of the conveyancing document?
A6 Yes, Australia Post is required to witness you signing the conveyancing document. Australia Post will watch you signing any conveyancing documents and where there is provision for a witness on the conveyancing document(s), sign the conveyancing document as witness.
Q7 What if the conveyancing document has to be updated and re-signed after 1 December 2015?
A7 You should contact Australia Post and arrange for them to verify your identity and witness you signing the updated conveyancing document.
Q8 What do I do if Australia Post can’t verify my identity?
A8 If Australia Post can’t verify your identity you will need to seek the assistance of a conveyancer or lawyer to complete your conveyancing transaction and conduct verification of your identity.
Q9 Can I have my identity verified by Australia Post if I have to sign a conveyancing document as an attorney under a Power of Attorney and I am not using a conveyancer or lawyer?
A9 No. Australia Post will not verify your identity if you are signing a conveyancing document as an attorney under a Power of Attorney. You will need to seek the assistance of a conveyancer or lawyer to complete your conveyancing transaction and conduct the verification of your identity
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Q10 Will the Registrar require proof that the identification has occurred and, if so, what paperwork is needed for this?
A10 Australia Post will provide you with a Land Title ID Check receipt. You must attach the original or a copy of a receipt to the conveyancing document(s) to be lodged with Land Victoria. Australia Post will provide the Registrar with evidence that the identification has occurred.
Q11 Do I need to keep any evidence?
A11 You are required to retain supporting evidence for seven years from the date of lodgement of the conveyancing document you signed at Land Victoria.
This evidence could include any contract signed by you, a copy of the conveyancing document signed by you, any evidence required by the State Revenue Office, the original identification documents that you produced to Australia Post and the original or a copy of the Land Title ID Check receipt given to you by Australia Post.
Q12 How can this evidence be stored?
A12 The evidence can be retained in a range of ways. However, the medium and means in which documents supporting the conveyancing transaction are to be retained is to be determined in light of the possible need to produce those documents as evidence to a court. Regardless of the way in which it is stored, evidence should be accessible, legible and secure.
The Australian Registrars’ National Electronic Conveyancing Council (ARNECC) has produced a useful guidance note on retention of evidence. The link to this document is provided in the ‘Further information’ section below.
Q13 Is there any transition period for verification of identity?
A13 There is no transition period. This requirement relates to any conveyancing document signed by a non-represented party on or after 1 December 2015.
Q14 What are the requirements if there is more than one non-represented party in a transaction?
A14 Each non-represented party must separately have their identity verified and their signing of a conveyancing document witnessed by Australia Post. The original or a copy of each Land Title ID Check receipt must be attached to the document(s) lodged at Land Victoria.
Further information Registrar’s requirements for paper conveyancing transactions under Section 106A of the Transfer of Land Act 1958 at www.delwp.vic.gov.au/publications
Land Victoria’s Guide to verification of identity for paper conveyancing transactions for conveyancers, lawyers and mortgagees available from www.delwp.vic.gov.au/property-forms
Australian Registrars’ National Electronic Conveyancing Council’s Model Participation Rules MPR Guidance Note 5 – Retention of Evidence available at www.arnecc.gov.au>Publications>MPR Guidance Notes
Guide to verification of identity for people not using a conveyancer or lawyer
Guide to verification of identity for people not using a conveyancer or lawyer Page | 7
Contact us For location and contact details, refer to www.delwp.vic.gov.au>Property and land titles>Forms, guides and fees>Contact Land Victoria.
© The State of Victoria Department of Environment, Land, Water and Planning 2016
This work is licensed under a Creative Commons Attribution 4.0 International licence To view a copy of this licence, visit http://creativecommons.org/licenses/by/4.0/
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
VOI – why, when, how | RACV Club | 2 March 2016 Page 2 of 8
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.
VOI – why, when, how | RACV Club | 2 March 2016 Page 3 of 8
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.
VOI – why, when, how | RACV Club | 2 March 2016 Page 4 of 8
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.
VOI – why, when, how | RACV Club | 2 March 2016 Page 5 of 8
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:
……………………………….……………………………….…………………………….
……………………………….……………………………….…………………………….
……………………………….……………………………….…………………………….
VOI – why, when, how | RACV Club | 2 March 2016 Page 6 of 8
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.
Ruling Number: R3500
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.
VOI – why, when, how | RACV Club | 2 March 2016 Page 7 of 8
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.
Ruling Number: R4054
Category: Privilege/confidentiality * Crime/fraud
Area of Law: Criminal
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.
Ruling Number: R4071
Category: Trust account * Crime/fraud * Solicitor as witness
Area of Law: Criminal
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:
VOI – why, when, how | RACV Club | 2 March 2016 Page 8 of 8
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 3 Guidance Note #1: Client Authorisation – Published September 2015
MODEL PARTICIPATION RULES GUIDANCE NOTE
CLIENT AUTHORISATION
1 INTRODUCTION
This guidance note aligns with Version 3 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 Subscriber 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
2 ARNECC MPR Version 3 Guidance Note #1: Client Authorisation – Published September 2015
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
or settlement notice.
For a caveat and a priority notice or 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.
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
3 ARNECC MPR Version 3 Guidance Note #1: Client Authorisation – Published September 2015
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, either until a specified date or until it is revoked; or
for a batch of transactions, in which case, the individual transactions in the batch
should be listed in an attached schedule.
A Client Authorisation smart form is available on the ARNECC website at
http://www.arnecc.gov.au/. This smart form 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.
An example of a completed Client Authorisation is shown overleaf.
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.
Q2: Where can I get a Client Authorisation form?
A2: A Client Authorisation form is available on the ARNECC website at
http://www.arnecc.gov.au/.
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.
4 ARNECC MPR Version 3 Guidance Note #1: Client Authorisation – Published September 2015
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.
__________
CLIENT AUTHORISATION When this form is signed, the Subscriber 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.
Subscriber 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
(transaction details below) STANDING AUTHORITY
ends on revocation or expiration date:___/____/___ BATCH AUTHORITY
(attach details)
CONVEYANCING TRANSACTION(S) 1 CONVEYANCING TRANSACTION(S) 2
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)
TRANSFER MORTGAGE CAVEAT TRANSFER MORTGAGE CAVEAT
PRIORITY/ SETTLEMENT NOTICE
DISCHARGE/ RELEASE OF MORTGAGE
WITHDRAW CAVEAT
PRIORITY/ SETTLEMENT NOTICE
DISCHARGE/ RELEASE OF MORTGAGE
WITHDRAW CAVEAT
OTHER OTHER
ADDITIONAL INSTRUCTIONS
SALE OF THIS PROPERTY PURCHASE OF THIS PROPERTY
CL
IEN
T A
UT
HO
RIS
AT
ION
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 Subscriber 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 Subscriber 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).
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:
CAPACITY:
FREDERICK BLOGGS CLIENT/CLIENT AGENT NAME:
CAPACITY:
FREDA BLOGGS
SU
BS
CR
IBE
R D
ET
AIL
S A
ND
SIG
NIN
G
SUBSCRIBER AGENT (if applicable)
NAME Lamb Lawyers
ACN/ARBN 101 469 147
ADDRESS 1/100 QUEEN STREEN, 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 SUBSCRIBER OR 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:
6 ARNECC MPR Version 3 Guidance Note #1: Client Authorisation – Published September 2015
Terms of this Client Authorisation
1. What is Authorised
The Client authorises the Subscriber 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 Subscriber signs on the Client’s behalf in accordance with this
Client Authorisation.
2. Mortgagees
Where:
(a) the Subscriber represents the Client in the Client’s capacity as mortgagee; and
(b) the Client represents to the Subscriber that the Client has taken reasonable steps to verify the identity of the mortgagor
the Client indemnifies the Subscriber 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 Subscriber 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 Subscriber 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:
Agent means a Person authorised by a Subscriber to act as the Subscriber’s agent. For the avoidance of doubt this can include an Identity Agent.
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 Subscriber 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 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 Subscriber acting solely as the Client’s Representative.
Conveyancing Transaction has the meaning given to it in the ECNL.
7 ARNECC MPR Version 3 Guidance Note #1: Client Authorisation – Published September 2015
Discharge/Release of Mortgage means a Registry Instrument that discharges or releases a Mortgage.
Document has the meaning given to it in the ECNL.
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 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 Rules 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.
Insurance Rules has the meaning given to it in the Participation Rules.
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.
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 Registry Instrument 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.
Person has the meaning given to it in the ECNL.
Personal Information has the meaning given to it in the Privacy Act 1988 (Cth).
Prescribed Requirement means any Published requirement of the Registrar that Subscribers 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.
Publish means, for any information, to publish the information on the Registrar’s website.
Registrar has the meaning given to it in the ECNL.
Registry Instrument has the meaning given to it in the ECNL.
Representative means a Subscriber who acts on behalf of a Client.
Specific Authority means an authority for the Subscriber to act for the Client in completing the Conveyancing Transactions described in this Client Authorisation.
Standing Authority means an authority for the Subscriber to act for the Client for a period of time set out in this Client Authorisation.
Subscriber is the Person named in this Client Authorisation and has the meaning given to it in the ECNL or for a paper Conveyancing Transaction is an Australian Legal Practitioner or a Licensed Conveyancer.
Titles Register has the meaning given to it in the ECNL.
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.
1 ARNECC MPR Version 3 Guidance Note #2: Verification of Identity – Updated January 2016
MODEL PARTICIPATION RULES GUIDANCE NOTE
VERIFICATION OF IDENTITY
1 INTRODUCTION
This guidance note aligns with Version 3 of the Model Participation Rules and explains:
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.
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 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
2 ARNECC MPR Version 3 Guidance Note #2: Verification of Identity – Updated January 2016
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 giving them a
duplicate or paper certificate of title.
3 ARNECC MPR Version 3 Guidance Note #2: Verification of Identity – Updated January 2016
A Subscriber must verify the identity of any mortgagor, former mortgagor or their agent
before giving them a duplicate or paper certificate of title.
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
4 ARNECC MPR Version 3 Guidance Note #2: Verification of Identity – Updated January 2016
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.
However, if the Verification of Identity Standard is used the requirements for an Identity
Agent must be met.
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.
5 ARNECC MPR Version 3 Guidance Note #2: Verification of Identity – Updated January 2016
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 referencing 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.
6 ARNECC MPR Version 3 Guidance Note #2: Verification of Identity – Updated January 2016
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
7 ARNECC MPR Version 3 Guidance Note #2: Verification of Identity – Updated January 2016
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
8 ARNECC MPR Version 3 Guidance Note #2: Verification of Identity – Updated January 2016
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;
9 ARNECC MPR Version 3 Guidance Note #2: Verification of Identity – Updated January 2016
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 as set out in Schedule 9 of the Participation Rules.
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.
6 FREQUENTLY ASKED QUESTIONS
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.
10 ARNECC MPR Version 3 Guidance Note #2: Verification of Identity – Updated January 2016
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
11 ARNECC MPR Version 3 Guidance Note #2: Verification of Identity – Updated January 2016
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
12 ARNECC MPR Version 3 Guidance Note #2: Verification of Identity – Updated January 2016
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 on an objective basis.
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?
A9: 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?
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?
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 teacher, lecturer, employer, doctor, nurse or
police officer?
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.
Q10: A person who lives in a remote aboriginal community is buying land. How
should a Subscriber determine what may constitute reasonable steps?
A10: In this situation some matters the Subscriber may consider in deciding what steps to
take to verify their client’s identity may include:
Is this an existing client?
13 ARNECC MPR Version 3 Guidance Note #2: Verification of Identity – Updated January 2016
Will you take your own reasonable steps or seek to apply the Verification of
Identity Standard?
Can the verification of identity be undertaken face-to-face? If yes, by whom?
If not, how can it be undertaken?
What forms of identification are available?
Is there enough other evidence to apply the Verification of Identity Standard?
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 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
circumstances of the individual case. Ultimately, this would be determined by a
Court on an objective basis.
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?
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, how can it be undertaken?
What forms of identification are available?
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?
If you wish to apply the Verification of Identity Standard and the client has
limited identification documents is there someone who could provide an
14 ARNECC MPR Version 3 Guidance Note #2: Verification of Identity – Updated January 2016
Identifier 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
circumstances of the individual case. Ultimately, this would be determined by a
Court on an objective basis.
__________
15 ARNECC MPR Version 3 Guidance Note #2: Verification of Identity – Updated January 2016
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,
16 ARNECC MPR Version 3 Guidance Note #2: Verification of Identity – Updated January 2016
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.
17 ARNECC MPR Version 3 Guidance Note #2: Verification of Identity – Updated January 2016
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 3 Guidance Note #3: Certifications – Published September 2015
MODEL PARTICIPATION RULES GUIDANCE NOTE
CERTIFICATIONS
1 INTRODUCTION
This guidance note aligns with Version 3 of the Model Participation Rules and explains:
what certifications are;
why certifications are required;
when certifications are required; and
how certifications are given.
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 ARE CERTIFICATIONS?
Certifications are statements made by a Subscriber that they have undertaken a specific
action. They are made by all Subscribers on registry instruments or other electronic
documents.
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 Subscriber has taken reasonable steps to verify the identity of the [transferor/transferee/ mortgagee/ mortgagor/ caveator/ applicant].
2 Authority The Subscriber holds a properly completed Client Authorisation for the Conveyancing Transaction including this Registry Instrument or Document.
3
2 ARNECC MPR Version 3 Guidance Note #3: Certifications – Published September 2015
# Subject Certification
3 Evidence The Subscriber has retained the evidence supporting this Registry Instrument or Document.
4 Correctness The Subscriber 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 Subscriber, or the Subscriber 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.
6 Certificate of Title
(used in Victoria and Western Australia only)
The Subscriber 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.
3 ARNECC MPR Version 3 Guidance Note #3: Certifications – Published September 2015
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
Applicant – self-represented 3 and 4
Subscriber representing applicant 3 and 4
Withdrawal of Settlement Notice
Applicant – self-represented 3 and 4
Subscriber representing applicant 1, 2, 3 and 4
Administrative Notice to convert and nominate a Certificate of Title
(Victoria Only)
Subscriber 6
4 ARNECC MPR Version 3 Guidance Note #3: Certifications – Published September 2015
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. Refer to Participation Rules
Guidance Note #2: Verification of Identity.
Where an alternative method of identification was taken 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.
5.2 Authority
Where the Authority certification is required, compliance can be proven by producing the
completed Client Authorisation. Refer to Participation Rules 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
5 ARNECC MPR Version 3 Guidance Note #3: Certifications – Published September 2015
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.
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.
6 FREQUENTLY ASKED QUESTIONS
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
Prescribed Requirements.
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?
6 ARNECC MPR Version 3 Guidance Note #3: Certifications – Published September 2015
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. Therefore the certification is not
inconsistent with the prescribed requirements for Control of Right to Deal holders in
New South Wales.
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.
__________
1 ARNECC MPR Version 3 Guidance Note #4: Right to Deal – Published December 2015
MODEL PARTICIPATION RULES GUIDANCE NOTE
RIGHT TO DEAL
1 INTRODUCTION
This guidance note aligns with Version 3 of the Model Participation Rules and explains:
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
2 ARNECC MPR Version 3 Guidance Note #4: Right to Deal – Published December 2015
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
on an objective basis.
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
3 ARNECC MPR Version 3 Guidance Note #4: Right to Deal – Published December 2015
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.
4 ARNECC MPR Version 3 Guidance Note #4: Right to Deal – Published December 2015
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?
5 ARNECC MPR Version 3 Guidance Note #4: Right to Deal – Published December 2015
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
6 ARNECC MPR Version 3 Guidance Note #4: Right to Deal – Published December 2015
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.
6 FREQUENTLY ASKED QUESTIONS
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 3 Guidance Note #5: Retention of Evidence – Published December 2015
MODEL PARTICIPATION RULES GUIDANCE NOTE
RETENTION OF EVIDENCE
1 INTRODUCTION
This guidance note aligns with Version 3 of the Model Participation Rules and explains:
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
2 ARNECC MPR Version 3 Guidance Note #5: Retention of Evidence – Published December 2015
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:
3 ARNECC MPR Version 3 Guidance Note #5: Retention of Evidence – Published December 2015
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.
4 ARNECC MPR Version 3 Guidance Note #5: Retention of Evidence – Published December 2015
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.
6 FREQUENTLY ASKED QUESTIONS
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.
__________
1 ARNECC MPR Version 3 Guidance Note #6: Compliance Examinations – Published June 2016
MODEL PARTICIPATION RULES GUIDANCE NOTE
COMPLIANCE EXAMINATIONS
1. INTRODUCTION
This guidance note aligns with Version 3 of the Model Participation Rules and explains:
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.
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 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
2 ARNECC MPR Version 3 Guidance Note #6: Compliance Examinations – Published June 2016
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 lodgement 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
lodgement 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 lodgement
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.
Subscribers should expect a compliance examination at least once every 3 years.
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;
3 ARNECC MPR Version 3 Guidance Note #6: Compliance Examinations – Published June 2016
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 Model Participation Rules Guidance Note # 1:
Client Authorisation);
verification of identity (refer to Model Participation Rules Guidance Note # 2:
Verification of Identity);
verification of the right to deal (refer to Model Participation Rules Guidance
Note # 4: Right to Deal);
supporting evidence (refer to Model Participation Rules Guidance Note # 5:
Retention of evidence);
digital signing.
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;
4 ARNECC MPR Version 3 Guidance Note #6: Compliance Examinations – Published June 2016
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 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.
Digital signing:
evidence of the steps taken to verify the identity of the signer provided;
evidence matches signer’s details for the digital signature;
evidence of reasonable steps taken to ensure signer satisfies Participation
Rule 7.4.1(b) provided;
timing of verification of identity and compliance with Participation Rule 7.4.1(b)
in relation to issuing of the digital signature is satisfactory;
evidence of the steps taken to ensure only signers digitally sign electronic
registry instruments or other electronic documents;
evidence that the Signer has complied with the applicable laws for the
jurisdiction in which the land the subject of the conveyancing transaction is
5 ARNECC MPR Version 3 Guidance Note #6: Compliance Examinations – Published June 2016
situated regarding who can conduct a conveyancing transaction and of steps
taken by the Subscriber to ensure signers comply with those applicable laws;
reasonable steps appear to have been taken.
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
Participation Rules; or
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.
___________
6 ARNECC MPR Version 3 Guidance Note #6: Compliance Examinations – Published June 2016
Appendix
SUBSCRIBER COMPLIANCE EXAMINATION CHECKLIST
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
Digital Signing
☐ Evidence provided of the steps taken to verify the identity of the Signer
☐ Evidence provided of steps taken to ensure a Signer's good character in accordance with Participation Rule 7.4.1(b)
☐ Evidence provided of the steps taken to ensure only Signers Digitally Sign electronic Registry Instruments or other electronic Documents
☐ Evidence provided that the Signer has complied with the applicable laws for the jurisdiction in which the land the subject of the Conveyancing Transaction is situated regarding who can conduct a Conveyancing Transaction
☐ Evidence provided of steps taken to ensure Signers comply with the applicable laws for the jurisdiction in which the land the subject of the Conveyancing Transaction is situated regarding who can conduct a Conveyancing Transaction
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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