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House of Assembly - Fifty-Second Parliament, Second Session (52-2)
2013-06-05 Daily Xml
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ELECTRONIC CONVEYANCING NATIONAL LAW (SOUTH AUSTRALIA) BILL

Introduction and First Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Industrial Relations, Minister for Business Services and Consumers) (12:02): Obtained leave and introduced a bill for an act to make provision for a national law relating to electronic conveyancing. Read a first time.

Second Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Industrial Relations, Minister for Business Services and Consumers) (12:02): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

The National Electronic Conveyancing initiative is a Council of Australian Governments reform that is endorsed within the existing National Partnership Agreement for a Seamless National Economy, to which South Australia is a party.

National Electronic Conveyancing will be an electronic business environment specifically implemented to create and settle property transactions prior to lodgement with the Land Services Group and other Australian Land Registries.

The legal framework to support National Electronic Conveyancing has been developed by a team of senior officers and legal representatives from Land Registries in each jurisdiction.

There is broad support across Government and industry nationwide for the introduction of electronic conveyancing.

Banks and other mortgage lenders are increasingly operating on a national basis, rather than at the State level. However, no common regulatory framework exists to enable documents in an electronic form to be lodged under the Torrens land title legislation in each State and Territory, and this impedes productivity, growth and makes it more difficult for businesses to maximise efficiency.

It is therefore critical that the National Electronic Conveyancing system is nationally uniform, with minimal jurisdiction specific variations, in order to derive maximum benefit for all participants.

South Australia's participation in National Electronic Conveyancing will markedly reduce current administrative burdens and costs associated with time and resources currently expended on physical settlements and processing of paper land transactions.

It is anticipated that National Electronic Conveyancing will:

reduce costs and delays associated with conveying and settling land transactions;

increase the accuracy of transactional data lodged with Land Registries;

reduce the complexity and cost of dealing across eight different jurisdictions.

The introduction of National Electronic Conveyancing is estimated to generate national gross savings of up to $250 million per annum and reduce the cost of preparing and settling each transaction by around $230.

In June 2012 the Government approved the signing of the Intergovernmental Agreement governing National Electronic Conveyancing. Following the release of the national Consultation Regulation Impact Statement for the Electronic Conveyancing National Law ('ECNL'), minor amendments were made and the Regulation Impact Statement for Decision was approved by the Commonwealth Office of Best Practice Regulation.

The Bill being introduced today, the Electronic Conveyancing National Law (South Australia) Bill 2013, is substantially similar to the ECNL.

It is intended that the Bill will not come into operation until the end of 2014, which will allow for the necessary amendments to the Real Property Act 1886 and other related legislation to be made. A separate Bill will be brought to the Parliament containing those related amendments.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

This clause is formal.

2—Commencement

This clause provides for commencement of the measure and exempts it from the application of section 7(5) of the Acts Interpretation Act 1915.

3—Definitions

This clause defines terms used in the measure.

Part 2—Application of Electronic Conveyancing National Law

4—Application of Electronic Conveyancing National Law

This clause specifies that the Electronic Conveyancing National Law applies as a law of South Australia.

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

This clause defines certain terms used in the Electronic Conveyancing National Law (South Australia).

6—Amendments to Schedule to maintain national consistency

This clause provides the procedure for adopting corresponding amendments made by the Parliament of New South Wales to the Electronic Conveyancing National Law.

7—Time for appeal against decisions of Registrar

This clause provides that a person who appeals against a decision of the Registrar-General under clause 28(2) of the Electronic Conveyancing National Law (South Australia) must institute the appeal within 28 days after receiving the written grounds for the decision.

8—Exclusion of legislation of this jurisdiction

This clause provides that the Acts Interpretation Act 1915 does not apply to the Electronic Conveyancing National Law (South Australia).

Part 3—Regulations

9—Regulations

This clause allows the Governor to make regulations.

Schedule 1—Electronic Conveyancing National Law

Note—

This Schedule sets out the National Law.

Part 1—Preliminary

1—Short title

This clause sets out the name of the National Law.

2—Commencement

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

3—Definitions

This clause defines certain expressions used in the National Law.

4—Interpretation generally

This clause gives effect to Schedule 1 to the National Law, which provides for the interpretation of the National Law.

5—Object of this Law

This clause sets out the object of the National Law.

6—Law binds the State

This clause provides that the National Law binds the State.

Part 2—Electronic Conveyancing

Division 1—Electronic lodgement

7—Documents may be lodged electronically

This clause 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-General and by means of an electronic lodgement network provided and operated under the National Law.

8—Registrar to process documents lodged electronically

This clause requires the Registrar-General to process a document lodged electronically.

9—Status of electronic registry instruments

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

Division 2—Client authorisations and digital signatures

Subdivision 1—Client authorisations

10—Client authorisations

This clause 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.

11—Effect of client authorisation

This clause gives effect to client authorisations.

Subdivision 2—Digital signatures

12—Reliance on, and repudiation of, digital signatures

This clause 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.

Part 3—Electronic Lodgement Networks

Division 1—Preliminary

13—Electronic Lodgement Network

This clause explains what is meant by an Electronic Lodgement 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.

Division 2—Operation of Electronic Lodgement Networks

14—Registrar may provide and operate ELN

This clause gives the Registrar-General power to provide and operate an ELN.

15—Registrar may approve ELNO to provide and operate ELN

This clause gives the Registrar-General power to approve a person to provide and operate an ELN. Such a person is an Electronic Lodgement Network Operator (ELNO).

16—Conditions of approval as ELNO

This clause permits the Registrar-General to attach conditions to an approval to operate an ELN.

17—Effect of approval as ELNO

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

18—ELNO required to comply with operating requirements

This clause requires a person approved as an ELNO to comply with the operating requirements.

19—Renewal of approval as ELNO

This clause provides for renewal of approval as an ELNO.

20—Revocation or suspension of approval as ELNO

This clause permits the Registrar-General to revoke or suspend the approval of a person as an ELNO.

21—Monitoring of activities in ELN

This clause permits the Registrar-General to monitor activities in an ELN.

Division 3—Operating requirements and participation rules

22—Operating requirements for ELNOs

This clause enables the Registrar-General to determine requirements in relation to the operation of an ELNO and the provision and operation, by an ELNO, of an ELN (operating requirements).

23—Participation rules

This clause enables the Registrar-General to determine rules relating to the use of an ELN (participation rules).

24—Registrar to have regard to nationally agreed model operating requirements and participation rules

This clause requires the Registrar-General 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.

25—Publication of operating requirements and participation rules

This clause requires the Registrar-General to ensure that copies of the current operating requirements and participation rules, and superseded versions, are publicly available.

26—Subscribers required to comply with participation rules

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

27—Waiving compliance with operating requirements or participation rules

This clause allows the Registrar-General to waive compliance with all or any provisions of the operating requirements or participation rules.

Division 4—Appeals

28—Appeal against decisions of Registrar

This clause provides for appeals against decisions of the Registrar-General made under the National Law.

29—Determination of appeal

This clause provides for the determination of appeals by the responsible tribunal (in South Australia, the Administrative and Disciplinary Division of the District Court).

30—Costs

This clause provides for the awarding of costs on appeals.

31—Relationship with Act establishing responsible tribunal

This clause 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 5—Compliance examinations

32—Definitions

This clause makes it clear that the Division extends to former ELNOs and former subscribers.

33—Compliance examinations

This clause enables the Registrar-General to conduct an investigation (compliance examination) 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.

34—Obligation to cooperate with examination

This clause requires an ELNO or subscriber to cooperate with a compliance examination.

35—Registrar may refer matter to appropriate authority

This clause allows the Registrar-General, 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.

36—Land titles legislation not limited

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

Part 4—Miscellaneous

Division 1—Delegation

37—Delegation by Registrar

This clause permits the Registrar-General to delegate functions under the National Law.

Division 2—Liability of Registrar

38—Registrar not obliged to monitor ELN or conduct compliance examination

This clause makes it clear that the Registrar-General is not obliged to monitor activities in an ELN or to conduct compliance examinations.

39—No compensation

This clause provides 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.

40—Registrar not responsible for additional services provided by ELNO

This clause makes it clear that the Registrar-General 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

41—Other laws relating to electronic transactions not affected

This clause makes 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.

42—Powers may be exercised for purposes of this Law

This clause provides 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 1—Miscellaneous provisions relating to interpretation

The Schedule sets 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 Acts Interpretation Act 1915.

Debate adjourned on motion of Mr Gardner.

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