Electronic Conveyancing (Adoption of National Law) Act 2013

Electronic Conveyancing (Adoption of National Law) Act 2013

No. 7 of 2013

table of provisions

SectionPage

Part 1—Preliminary

1Purpose

2Commencement

3Definitions

Part 2—Application of Electronic Conveyancing National Law

4Application of Electronic Conveyancing National Law

5Meaning of general terms in Electronic Conveyancing
National Law for purposes of this jurisdiction

6Responsible tribunal for Electronic Conveyancing National
Law (Victoria)

7Delegation to any other person for Electronic Conveyancing National Law (Victoria)

8Exclusion of interpretation legislation of this jurisdiction

9Offence to give false or misleading information

10Regulations

Part 3—Amendment of Other Acts

Division 1—Amendment of Transfer of Land Act 1958

11Definitions

12Powers of Registrar

13New Part IIIB inserted

Part IIIB—Registry Instruments

44OPowers of Registrar

44PDuty of Registrar in relation to priority of registry instruments

44QELN malfunction

44REvidence of registry instruments

44SElectronic certification of registry instrument

Division 2—Amendment of Property Law Act 1958

14Rights of purchaser as to execution

Division 3—Amendment of Interpretation of Legislation Act 1984

15New section 38H inserted

38HReferences to Electronic Conveyancing National Law

Division 4—Cessation of operation of Victorian electronic
lodgement network

Subdivision 1—Amendment of Transfer of Land Act 1958

16Repeal and substitution of specified definitions

17Repeal of Part IIIA

18ELN malfunction

19Evidence of registry instruments

20Electronic certification of registry instrument

21Regulations

Subdivision 2—Amendment of Property Law Act 1958

22Rights to purchaser as to execution

Division 5—Repeal of amending Part

23Repeal of amending Part

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EndnoteS

Annexure14

SectionPage

Victoria

SectionPage

Electronic Conveyancing (Adoption of National Law) Act 2013[†]

No. 7 of 2013

[Assented to 26 February 2013]

Electronic Conveyancing (Adoption of National Law) Act 2013
No. 7

The Parliament of Victoriaenacts:

Part 3—Amendment of Other Acts

Electronic Conveyancing (Adoption of National Law) Act 2013
No. 7 of 2013

Part 1—Preliminary

1Purpose

The main purpose of this Act is—

(a)toadopt in Victoria a national law relating to electronic conveyancing; and

(b)to make consequential amendments to the Transfer of Land Act 1958 and other Acts.

2Commencement

s. 2

This Act comes into operation on a day or days to be proclaimed.

3Definitions

(1)For the purposes of this Act, the local application provisions of this Act are the provisions of this Act other than the Electronic Conveyancing National Law (Victoria).

(2)In the local application provisions of this Act—

Electronic Conveyancing National Law (Victoria) means the provisions applying in this jurisdiction because of section 4.

______

Part 2—Application of Electronic Conveyancing National Law

4Application of Electronic Conveyancing National Law

s. 4

The Electronic Conveyancing National Law as in force from time to time set out in the Appendix to the Electronic Conveyancing(Adoption of National Law) Act 2012 of New South Wales (other than section 39 of that Law)—

(a)applies as a law of this jurisdiction; and

(b)as so applying may be referred to as the Electronic Conveyancing National Law (Victoria); and

(c)applies as if it were an Act.

5Meaning of general terms in Electronic Conveyancing National Law for purposes of this jurisdiction

In the Electronic Conveyancing National Law (Victoria)—

land titles legislation means the Transfer of Land Act1958;

Registrar has the same meaning as it has in the Transfer of Land Act 1958;

registry instrument has the same meaning as it has in the Transfer of Land Act 1958;

this jurisdiction means Victoria;

titles register has the same meaning as Register has in the Transfer of Land Act 1958.

6Responsible tribunal for Electronic Conveyancing National Law (Victoria)

s. 6

The Supreme Court and the County Court are eachthe responsible tribunal for this jurisdiction for the purposes of the Electronic Conveyancing National Law (Victoria).

7Delegation to any other person for Electronic Conveyancing National Law (Victoria)

For the purposes of section 37 of the Electronic Conveyancing National Law (Victoria) the reference toany other personis taken to be a reference topublic official within the meaning of section 4(1) of the Public Administration Act 2004.

8Exclusion of interpretation legislation of this jurisdiction

The Interpretation of Legislation Act 1984 does not apply to the Electronic Conveyancing National Law (Victoria) or to the instruments made under that Law.

9Offence to give false or misleading information

(1)A person must notgive information or an answer to the Registrar under the Electronic Conveyancing National Law (Victoria) or an instrument under that Law that the person believes to be false or misleading in any material particular.

Penalty:60 penalty units.

(2) A person must not produce a document to the Registrar under the Electronic Conveyancing National Law (Victoria) or an instrument under that Law that the person knows to be false or misleading in a material particular without indicating the respect in which it is false or misleading and, if practicable, providing correct information.

Penalty:60 penalty units.

10Regulations

s. 10

The Governor in Council may make regulations for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.

______

Part 3—Amendment of Other Acts

Division 1—Amendment of Transfer of Land Act 1958

11Definitions

s. 11

See:
Act No.
6399.
Reprint No. 16
as at
23 October 2008
and amending
Act Nos
69/2009, 80/2009 and 35/2010.
LawToday:
www.
legislation.
vic.gov.au

Insert the following definitions in section 4(1) of the Transfer of Land Act 1958—

"ELN means ELN within the meaning of the Electronic Conveyancing National Law (Victoria);

registry instrumentmeans an instrument other than an electronic instrument lodged in the electronic lodgement network;".

12Powers of Registrar

Section 44D(6) of the Transfer of Land Act 1958 is repealed.

13New Part IIIB inserted

After Part IIIA of the Transfer of Land Act 1958 insert—

"Part IIIB—Registry Instruments

44OPowers of Registrar

(1)If a registry instrument is lodged for registration under this Act, the Registrar may—

(a)refuse to register the registry instrument if, in the opinion of the Registrar, the registry instrument—

(i) is not in the approved form (ifany); or

(ii) is incomplete; or

(iii)contains errors; or

(iv)is not completed correctly; or

(b)seek further information in respect of the registry instrument; or

(c)register the registry instrument under section 27A without issuing a certificate of title; or

(d)register the registry instrument under section 27A and produce a certificate of title under section 27B.

s. 13

(2)Nothing in subsection (1) affects any other power of the Registrar to refuse registration of a registry instrument.

(3)Nothing in section 27B requires the Registrar to produce a certificate of title in respect of the registration of a registry instrument.

(4)Nothing in this Part prevents the Registrar from producing a certificate of title under section 27B at any time after the registration of a registry instrument.

(5)If the Registrar refuses to register a registry instrument and the parties to the registry instrument wish to proceed with the relevant dealing, the Registrar may require the relevant instruments to be executed and lodged for registration in a form other than an electronic communication.

44PDuty of Registrar in relation to priority of registry instruments

The Registrar must ensure that a registry instrument lodged for registration is dealt with in a manner that ensures that section 34 is complied with.

44QELNmalfunction

s. 13

(1)The Registrar may amend the Register to correct errors in the Register and supply entries or recordings omitted to be made in the Register under this Act if the error or omission resulted from a malfunction of the ELN.

(2)The Registrar must keep a record of every correction under subsection (1).

(3)Every correction under subsection (1) is to have the same validity and effect as if the error or omission had not occurred.

44REvidence of registry instruments

(1)The Registrar must, on the application of any person, produce a document in writing recording information contained in a registry instrument that has been lodged for registration under this Act.

(2)A document produced under subsection (1) must be certified by the Registrar as a true representation of the information in the registry instrument.

(3)A document certified under subsection (2) is evidence of the matters contained in the document.

(4)An application under this section must be in the appropriate approved form and be accompanied by the prescribed fee (if any).

44SElectronic certification of registry instrument

(1)The Registrar may produce in an electronic form a representation of any registry instrument lodged in theELN.

(2)The Registrar may certify the electronic representation in any manner determined by the Registrar.

(3)A representation of a registry instrument certified in accordance with this section is evidence of the contents and nature of the registry instrument.

______".

Division 2—Amendment of Property Law Act 1958

14Rights of purchaser as to execution

See:
Act No.
6344.
Reprint No. 12
as at
10 May 2007
and amending
Act Nos
75/2006, 12/2008, 24/2008, 1/2010, 29/2011 and 50/2011.
LawToday:
www.
legislation.
vic.gov.au

s. 14

In section 75(3) of the Property Law Act 1958 after "does not apply to" insert "a registry instrument or".

Division 3—Amendment of Interpretation of Legislation Act 1984

15New section 38H inserted

See:
Act No.
10096.
Reprint No. 10
as at
20 May 2010
and amending
Act Nos
10/2010, 11/2010, 13/2010, 64/2010, 70/2010, 72/2010, 80/2011, 21/2012, 43/2012 and 64/2012.
LawToday:
www.
legislation.
vic.gov.au

s. 15

After section 38G of the Interpretation of Legislation Act 1984 insert—

"38H References to Electronic Conveyancing National Law

In an Act or subordinate instrument—

Electronic Conveyancing National Law (Victoria)means the provisions applying because of section 4 of theElectronic Conveyancing (Adoptionof National Law) Act 2013.".

Division 4—Cessation of operation ofVictorian electronic lodgement network

Subdivision 1—Amendment of Transfer of Land Act1958

16Repeal and substitution of specified definitions

(1)In section 4(1) of the Transfer of Land Act 1958, the definitions of electronic instrumentand electronic lodgement network arerepealed.

(2)In section 4(1) of the Transfer of Land Act 1958, for the definition of registry instrument substitute—

"registry instrumentmeans instrument;".

17Repeal of Part IIIA

Part IIIA of the Transfer of Land Act 1958 is repealed.

18ELN malfunction

s. 18

After section 44Q(3) of the Transfer of Land Act 1958 insert—

"(4)For the purposes of this section—

ELN includes the electronic lodgement network referred to in section 44B as in forcebefore its repeal by section 17 of the Electronic Conveyancing(Adoption of National Law) Act 2013.".

19Evidence of registry instruments

After section 44R(4) of the Transfer of Land Act 1958insert—

"(5)For the purposes of this section—

Old Part IIIA instrument means an electronic instrument under Part IIIA as in forcebefore its repeal by section 17 of the Electronic Conveyancing(Adoption of National Law) Act 2013;

registry instrument includes an Old Part IIIA instrument.".

20Electronic certification of registry instrument

After section 44S(3) of the Transfer of Land Act 1958 insert—

"(4)For the purposes of this section—

ELN includes the electronic lodgement network referred to in section 44B as in forcebefore its repeal by section 17 of the Electronic Conveyancing(Adoption of National Law) Act 2013;

Old Part IIIA instrument means an electronic instrument under Part IIIA as in force before its repeal by section 17 of the Electronic Conveyancing(Adoption of National Law) Act 2013;

registry instrument includes an Old Part IIIA instrument.".

21Regulations

s. 21

Section 120(2)(ff) and (fg) of the Transfer of Land Act 1958 are repealed.

Subdivision 2—Amendment of Property Law Act1958

22Rights to purchaser as to execution

In section 75(3) of the Property Law Act 1958omit "or an electronic instrument".

Division 5—Repeal of amending Part

23Repeal of amending Part

This Part is repealed on the first anniversary of the first day on which all of its provisions are in operation.

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Electronic Conveyancing (Adoption of National Law) Act 2013
No. 7 of 2013

Annexure

EndnoteS

Endnotes

[†] Minister's second reading speech—

Legislative Assembly: 14 November 2012

Legislative Council: 7 February 2013

The long title for the Bill for this Act was "A Bill for an Act to adopt in Victoria a national law relating to electronic conveyancing and to make consequential amendments to the Transfer of Land Act 1958 and other Acts and for other purposes."

ANNEXURE

Electronic Conveyancing (Adoption of National Law) Bill 2012 of New South Wales

Explanatory Note

Appendix Electronic Conveyancing National Law.

The Appendix sets out theNational Law.

Part1 Preliminary

Clause 1 sets out the name (also called the short title) of the National Law.

Clause 2 provides for the commencement of the National Law in a participating jurisdiction to be as provided for by an Act of that jurisdiction.

Clause 3 defines certain expressions used in the National Law.

Clause 4 gives effect to Schedule 1 to the National Law, which provides for the interpretation of the National Law.

Clause 5 provides for the object of the National Law, as set out in the Overview.

Clause 6 provides that the National Law binds the State.

Part2 Electronic Conveyancing

Division1 Electronic lodgment

Clause 7 allows a document to be lodged electronically for the purposes of land titles legislation if the document is lodged in a form approved by the Registrar and by means of an electronic lodgment network provided and operated under the National Law.

Clause 8 requires the Registrar to process a document lodged electronically.

Clause 9 provides that an instrument executed and lodged electronically under the National Law has the same effect as a paper document.

Division2 Client authorisations and digital signatures

Subdivision1 Client authorisations

Clause 10 provides for client authorisations. A client authorisation is a document by which a party to a conveyancing transaction authorises a subscriber to complete a conveyancing transaction electronically.

Clause 11 gives effect to client authorisations.

Subdivision2 Digital signatures

Clause 12 provides for the digital signing of documents by subscribers and the effect of documents that are digitally signed. The clause sets out the circumstances in which a digital signature may be repudiated, namely, that the digital signature was not created by the subscriber or by a person authorised to create digital signatures on behalf of the subscriber, and the subscriber did not fail to comply with the participation rules or to take reasonable care with respect to the creation of the digital signature. The clause does not prevent the unsigning of a document, which may occur prior to settlement.

Part3 Electronic Lodgment Networks

Division1 Preliminary

Clause 13 explains what is meant by an Electronic Lodgment Network or ELN. An ELN is an electronic system that enables the lodging of registry instruments and other documents in electronic form for the purposes of land titles legislation.

Division2 Operation of Electronic Lodgment Networks

Clause 14 gives the Registrar power to provide and operate an ELN.

Clause 15 gives the Registrar power to approve a person to provide and operate an ELN. Such a person is an Electronic Lodgment Network Operator (ELNO).

Clause 16 permits the Registrar to attach conditions to an approval to operate an ELN.

Clause 17 permits a person approved as an ELNO to provide an ELN in accordance with the approval.

Clause 18 requires a person approved as an ELNO to comply with the operating requirements.

Clause 19 provides for renewal of approval as an ELNO.

Clause 20 permits the Registrar to revoke or suspend the approval of a person as an ELNO.

Clause 21 permits the Registrar to monitor activities in an ELN.

Division 3Operating requirements and participation rules

Clause 22 enables the Registrar to determine requirements inrelation to the operation of an ELNO and the provision and operation, by an ELNO, of an ELN (operating requirements).

Clause 23 enables the Registrar to determine rules relating to the use of an ELN (participation rules).

Clause 24 requires the Registrar to have regard to any model operating requirements or model participation rules published by the Australian Registrars' National Electronic Conveyancing Council in determining the operating requirements and participation rules.

Clause 25 requires the Registrar to ensure that copies of the current operating requirements and participation rules, andsuperseded versions, are publicly available.

Clause 26 requires subscribers who are authorised to use an ELN to comply with the participation rules relating to the ELN.

Clause 27 allows the Registrar to waive compliance with all or any provisions of the operating requirements or participation rules.

Division 4Appeals

Clause 28 provides for appeals against decisions of the Registrar made under the National Law.

Clause 29 provides for the determination of appeals by the responsible tribunal (in New South Wales, the Supreme Court).

Clause 30 provides for the awarding of costs on appeals.

Clause 31 makes it clear that the proposed Division applies despite any Act that establishes or continues the responsible tribunal, but does not otherwise limit such an Act.

Division 5Compliance examinations

Clause 32 makes it clear that the Division extends to former ELNOs and former subscribers.

Clause 33 enables the Registrar to conduct investigations (compliance examinations) in relation to an ELNO or subscriber for the purpose of ascertaining whether or not the operating requirements and participation rules are being complied with, or investigating any suspected misconduct with respect to the use of an ELN.

Clause 34 requires an ELNO or subscriber to cooperate with a compliance examination.

Clause 35 allows the Registrar, instead of conducting a compliance examination or during or after the conduct of a compliance examination, to refer a matter to an investigatory, disciplinary or other appropriate authority.

Clause 36 makes it clear that the Division does not limit any provision of the land titles legislation that also authorises investigations, inquiries or examinations.

Part 4Miscellaneous

Division 1 Delegation

Clause 37 permits the Registrar to delegate functions under the National Law.

Division 2 Liability of Registrar

Clause 38 makes it clear that the Registrar is not obliged to monitor activities in an ELN or to conduct compliance examinations.

Clause 39provides that no compensation is payable for things done or omitted in good faith in connection with the monitoring of activities in an ELN or the conduct of compliance examinations.

Clause 40makes it clear that the Registrar is not responsible for the regulation or operation of any services provided by an ELNO that are additional to the ELN.

Division 3 Relationship with other laws

Clause 41makes it clear that the National Law is in addition to and not in substitution for the laws of the State relating to electronic transactions or the use of electronic documents.

Clause 42provides that a power conferred by the land titles legislation to make an instrument of a legislative or administrative character, or to do any other thing, extends to making instruments, or doing other things, for the purposes of the National Law.

Schedule 1Miscellaneous provisions relating to interpretation

Schedule 1sets out the general interpretation provisions that have effect in relation to the National Law. The provisions have effect in substitution for the provisions of the Interpretation Act 1987.

Appendix Electronic Conveyancing National Law

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Contents

Part1 Preliminary

1Short title

2Commencement

3Definitions

4Interpretation generally

5Object of this Law

6Law binds the State

Part 2Electronic Conveyancing

Division1 Electronic lodgment

7Documents may be lodged electronically

8Registrar to process documents lodged electronically

9Status of electronic registry instruments