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House of Assembly - Fifty-Third Parliament, Second Session (53-2)
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Bills

Real Property (Priority Notices and Other Measures) Amendment Bill

Second Reading

Adjourned debate on second reading (resumed on motion).

Mr PEDERICK (Hammond) (15:41): I rise to continue my remarks in regard to the Real Property (Priority Notices and Other Measures) Amendment Bill 2015. As crown land is discussed in the bill, my preceding remarks before the lunch break were about an issue I have with crown land in my electorate, that is, a place called Gawler Square, which is part of the Currency Creek survey which was initially done in 1840. This is about the council trying to amalgamate title in the old Currency Creek planning area to get some clarity into the future, and it has been a difficult process.

The issue is that someone did not get their survey done appropriately and built a shed right where a roadway supposedly needs to go to this Gawler Square, but this Gawler Square is a town square that will never function as a town square. These are all rural living blocks and the Gawler Square, which is about four acres in the old language, is split four ways, essentially, between the four neighbours and being used by the four neighbours as part of their properties. The issue is, because this landholder has his shed in the wrong place, legally, access needs to be maintained to a planned town square.

The reality is no-one is ever going to go to this town square, at all—no-one. There is a Ngarrindjeri native title claim over the crown land, which is the town square. I am still seeking clarity between various ministers, as I indicated earlier in my speech, about whether native title is automatic because it is crown land or whether there is a separate native title claim by the Ngarrindjeri people on that. That is the difficulty we have.

The difficulty I have in a practical sense is: why does this landholder, even though he did have some survey issues (and he admits that), need to pull down half a shed so there can be a road to nowhere? I think it is ridiculous, quite frankly, that it cannot be resolved. I wrote to the planning minister on 24 April 2014, and I quote from part of his reply:

I am advised that records held by the Department of Environment, Water and Natural Resources indicate that in 2008 council sought information about the revocation process of Gawler Square with a view to subdividing the land and merging it with adjoining certificates of title. In April 2009 the department advised council that, as native title had not been extinguished from the land, Gawler Square could not be disposed. Advice was also provided regarding the requirement for maintenance of legal access to the land following any merging of road reserves into the adjoining freehold land.

I would like to note that the council involved is Alexandrina Council and, if native title can be extinguished, they will be more than happy to go on with the process of those four parts of crown land being merged into the other titles of the adjoining property owners.

I have a letter from minister Hunter, who is the Minister for Sustainability, Environment and Conservation, which talks about a meeting I had with my staff and some of his departmental staff that was held on 30 October 2014 regarding Gawler Square, Currency Creek. I quote a paragraph from the reply from minister Hunter:

DEWNR is unable to dispose of Gawler Square as the site is subject to an unresolved Ngarrindjeri native title claim. However, I am pleased to advise that an interim solution has been identified whereby adjacent landholders may apply to DEWNR for licences to occupy the Gawler Square land. This will authorise their current use the land.

'Well, that's fantastic. They're doing it anyway, so why should they get it authorised?' you may say. That is fine, they are going to use it anyway, but at the end of the day what I am disappointed about from the meeting I had with the advisers that day—I note the minister was not there—is the fact that they did say that native title could be revoked. It could be through a process, and I think they indicated to me that there were several cases that had been resolved recently. I know the council and the adjoining landholders are keen for that process to go ahead, but the letter is quite different to the advice I got from advisers on the day of the meeting.

I note my most recent advice from Alexandrina Council, which is dated 10 February 2015, and I quote from the letter one paragraph:

Should Council receive formal notification that the native title claim is able to be resolved in a timely manner, Council will be in a position to review its current offer to [my constituent] and determine the most appropriate long term resolution for all parties concerned.

I urge the government and ministers involved—and I have verbally communicated to the new Minister for Aboriginal Affairs, the Hon. Kyam Maher from another place—that this needs to be worked through. I think it can be resolved appropriately. Perhaps it is just too simple, but I think it is madness that we may cause a couple of people in my electorate to pull down part of their shed to have a road to nowhere.

Mr GRIFFITHS (Goyder) (15:47): I also wish to make a brief contribution to the Real Property (Priority Notices and Other Measures) Amendment Bill and put on the record from a personal perspective some experiences I had last year in relation to the verification of identity requirements, which is in clause 18 in this bill.

Like most people, I am an aspirational property owner. I am blessed to own a couple, all of which are on the parliamentary record of members' interests, so they are there. With them, of course, comes the debts associated with property ownership and the ongoing liability for land tax. We shall not talk about that, but I did contribute to stamp duty quite significantly last year when I bought a property. The saga associated with the transfer of that, though, opened my eyes about the challenge that legislation and regulation presents to people, particularly those in regional areas.

In my case, negotiation occurred with a conveyancer based on Greenhill Road about an opportunity for me to attend. It was physically impossible for my wife, who is a co-owner of this property, to be at this meeting. I had sought an opportunity to do it in a more local lawyer's office close to where I live, but at the time of that there was no agreement in place for it. It had been a target, as I understand it, for conveyancers to have arrangements in place with legal firms in regional areas for this to be achievable, but it was not, so I duly attended, as I was required to do, for the conveyancers, and presented my identification to prove that I was who I said I was.

I do put on the record that I understand it is absolutely important that verification be obtained, but we have to ensure that it is in a practical way. In my wife's case, as a co-owner of the property, she was able to make a subsequent arrangement to visit a regional legal firm, but that comes at a cost also. For the life of me I struggle to remember what it was, but I think it was about $80 or thereabouts for presumably a five-minute visit to identify who she was and to sign the form. So, when the shadow minister, the deputy leader, in her forensic examination of this bill earlier in the morning talked about quite a few things, this one did tweak my interest. I just wanted to put on the record in a very brief way that, while I respect the fact that the legislation will go through, for me it is the practical implementation of it and the impact upon people, particularly those in regional areas.

I hope that, from the variety of contributions that will be made and from the feedback that has been provided by people who have purchased property and dealt with verification requirements and, in some cases, the challenges that presents, every effort is made to ensure that a practical correction is made to ensure that the outcome is a better one for people. They are making one of the most substantial financial decisions ever in their life. They want the process to work smoothly. They certainly do not want it to be held up in any way, but they also want to make sure that it does not cause them more anguish than the concerns associated with a long-term debt repayment plan, which we all live with too. I look forward to the passage of the bill and I look forward to ensuring that, when people contact me, it is not about the concerns I expressed last year.

Ms REDMOND (Heysen) (15:50): I rise also to make a contribution on the Real Property (Priority Notices and Other Measures) Amendment Bill, and, indeed, it is actually the other measures and verification of identification about which I primarily wish to speak. In beginning those comments, I would say that I probably have a longer history in the conveyancing area than anyone else in the room, having commenced in the Crown Solicitor's Office in Sydney in 1972 and having become immediately involved in conveyancing. As perhaps the advisers, if not the ministers and others here, would be aware Sydney of course had old system title. In this state we famously have the Torrens title.

Out in the corridor, immediately adjacent to this chamber, is a wonderful portrait of Robert Torrens, painted by Andrew McCormack, whose son owned the house that I now live in back in the 1920s. Andrew McCormack painted a lovely picture of Robert Torrens and various other people around this parliament. The very essence of the way we do titles in this state is based on the system that he originated all that time ago. It is a system which has been widely adopted around the rest of the world.

Under the old system, you had to trace the title back from its original grant from the King or whatever it was, and then you had to check every document down through the ages to make sure that it had been validly transferred all the time. Of course, with Torrens title we have a certificate of title for any given piece of land, and on that title is the registered owner and any other things like a mortgage or whatever might be registered on the title. Once that registered owner is on there, that title is indefeasible against the rest of the world. That person is the owner of the fee simple. The system works very well and has done since the early days of this colony.

This new proposal seems to me to be fraught with difficulty. I recognise that there has to be some changes. I practised as a lawyer doing a fair bit of conveyancing in this state; indeed, the first time I ever held a cheque for an actual million dollars was when a client of mine was selling a property in Stirling some fair few years ago now, and it was for more than $1 million. Of course, people who could afford to buy that sort of thing did not need bank finance, and I just got a bank cheque from the other side for $1 million that I had to carefully take home.

The circumstances of our settlements were crazy. I have been in this place for 13 years, and well before I came in here we got the new settlements room in Grenfell Street. The excuse given for its small size at the time was that we were about to change to electronic conveyancing, and so we did not need a settlements room any more. We had this very small room, and everyone used to pack in, and if you could understand what has to happen—the member for Bragg spoke about it in her contribution earlier—if you are selling a property, normally there is a mortgage, so you have to find the bank that has the mortgage, get the mortgage and their discharge of that, and the title they are holding. They do not want to hand that over, of course, until you give them a cheque, but in order to get the cheque you have to give all of those documents to the purchaser whose bank is going to take the money and provide the money back.

In this room you had to find the people who were involved. Usually there would be a bank on either side and a purchaser and vendor, and often there could be other settlements connected, so that someone might be selling their house and buying their next house, and they would have to have their people lined up as well. On the most simple one, you would often have four parties: the two banks, the purchaser and the vendor. You would have to locate who they were by yelling out and all that sort of thing and then try to make your way across the room. It became so farcical that the crowding in that room was just ridiculous.

At one stage, what they decided to do was to put a $20 extra fee if you had a settlement on a Friday, because most people settle on a Friday so they can move house on Friday night and over the weekend. They put a $20 fee on to say, 'You can't settle on a Friday, other than by paying this extra fee,' to try to reduce the numbers. Indeed, on one occasion we got the then registrar-general to come down into that room, and we made sure that everyone who was there was actually in the room, because we used to spill out into the foyer area, and tried to impress upon him how difficult it was.

That is by way of background to say that I understand the need for a change and that I recognise, although I am not a fan of technology, the need for a recognition of technology. I still worry. Indeed, I cry still about the fact that they have got rid of the beautiful old parchment titles and that we now have a little green A4 piece of paper that is so easy to throw away because it does not even look like a certificate of title any more.

There are a couple of things I want to note and get a comment from the minister on, when the other minister comes back and reads all these comments later on. Firstly, I note that under the amendments, proposed new section 154A, subsection (10) states:

The Registrar-General is not required to inquire into the content of a priority notice in order to determine whether that content is correct.

From what the member for Bragg said in this morning's contribution, I gather that is because it can just be lodged by computer, so there is no-one actually checking to say whether it is correct. In proposed subsection (11), it goes on to say that, if a notice is lodged, the Registrar-General has to record on the notice the time of receipt and a record of the lodgement, but the Registrar-General:

…is not required to advise the registered proprietor of the land to which the priority notice relates, or any other person, that the notice has been lodged.

That seems to me to be an extraordinary situation, that you can have someone lodge a priority notice on your property and there is no requirement to give notice about it.

Interestingly, under proposed subsection (14) it says that a priority notice may be lodged in relation to land in a single certificate of title, more than one certificate of title or 'a portion of the land comprised in a certificate of title', which I think is quite extraordinary. In proposed section 154B—Effect of priority notice, it goes on to say:

If an instrument affecting land is lodged in the Lands Titles Registration Office or served on the Registrar-General while a priority notice is in force…the instrument—

that is, your new transfer or mortgage or whatever—

may not be registered or recorded in the Register Book or the Register of Crown Leases until the priority notice ceases to have effect.

I think there are considerable concerns about what impact that is going to have on indefeasibility of title and the rights of owners of property and, indeed, mortgagees. I also want to express some concerns about proposed new sections 154C and 154D. Proposed new section 154C provides:

Instruments identified in a priority notice are to be registered in the order in which they are given priority in the notice unless the Registrar-General considers there is good reason for registering the instruments in a different order.

There is no indication given in that section as to the basis upon which the Registrar-General is able to exercise that great discretion, and it is an extraordinary discretion. It seems to me that it is, by its wording, an unfettered discretion, and that strikes me as extremely dubious. Secondly, proposed section 154D states that the lodging party need not be informed that an instrument cannot be registered or recorded. That is:

The Registrar-General is not required to inform a person who lodges an instrument affecting land in relation to which a priority notice is in force that the instrument cannot be registered or recorded in the Register Book…

Again, I think that is an extraordinary provision. As I said at the outset, the main thing I want to talk about is this issue of the verification of identity documents, and I do so on the basis of a lengthy letter that I received a year ago; indeed, I think it was also sent to the Attorney-General, but he sent back a very dismissive reply. It is quite a lengthy letter and I will put a fair bit of it onto the record, but it is signed by not just the author of the letter who is a registered conveyancer, but indeed by another 12 and it was forwarded to me by yet another person also involved in certificates of title, conveyancing and so on. The author of the letter to Brenton Pike, the Registrar-General, is:

…writing to express my profound concern about your office's VOI—

verification of identity, and I will refer to it from now on as VOI because that is the abbreviation it is given—

Policy and requirements relating to RPA [Real Property Act] documents, clients and conveyancers. …it would appear that little or no consideration has been given to the people who are directly affected by it and who will bear considerable cost (time, money, inconvenience and angst) because of its implementation. A verifying fee is payable for each person being verified. The starting price is $39 per person but how and who will be controlling price increases? Once the system is established, the public will have no choice but to pay whatever the fee becomes.

It is very important to me that your office is aware of the serious problems which will be caused by the implementation of the Policy.

Some of my concerns relate to issues out of the control of your office but they nonetheless are becoming issues only as a direct result of the VOI policy... I would very much like to know whether you or your office gave any thought or consideration to the impact the Policy would have on clients and on Conveyancers, their respective businesses, profitability, additional time required to attend to the extra work and the stress created by all of those issues.

To the best of my knowledge the Policy is merely a policy and not a change or addition to any legislation.

Now, because of this, it may be a change to the legislation. The author goes on to talk about the fact that:

Conveyancers are trained in conveyancing.

They are not trained to detect fraud. I think that is another point that the member for Bragg made in her contribution this morning.

Conveyancers acknowledge and accept responsibility and liability as regards conveyancing work but should not be forced to take up the responsibility and liability which properly belongs to and should remain with your [the Registrar-General's] office. In the future there will be no RPA documents to examine and I understand there will be zero liability placed on your office to ensure each transaction is legitimate. Is that correct?

Of course, there has never been a response to that.

The mishandling and mismanagement of the introduction of the Policy is nothing short of ludicrous, the proof being in the inability to find and implement any workable, satisfactory and safe solution.

The letter then goes on firstly to deal with the issues with Australia Post and the fact that it is claimed that people can just go to an Australia Post outlet, but of course only Australia Post outlets with passport facilities can do the verification work and there are only about 1,400 of those nationally and indeed there may be fewer now than there were a year ago. The author then goes on to point out:

I have many clients in Roxby Downs, Coober Pedy, other remote areas and also interstate cities, remote farms and towns. I have had clients in Karratha, Barrow Island and one client on a ship at sea. I have also had a client in, at that time, war torn Lebanon. It would be impossible for them to have a face to face interview with a verifying agent.

Indeed, I have another piece of information I probably will not get to about a professor in Canada who needed to have his identity verified and it was going to involve something like 2,000 kilometres of travel to get the documents signed. The letter continues:

Australia Post refuses to allow its staff also to witness the signatures on the RPA documents for which verification is required. The documents then need to be signed and witnessed quite separately from the verification documents…In order for Conveyancers to be allowed to use Australia Post (or another verifier), an agency agreement has to be entered into.

The document that they had prepared at that stage:

…states in part that Conveyancers are fully liable for any errors made by Australia Post staff. That situation is totally unacceptable and no-one should have to be subjected to it…Secondly, the Australian Institute of Conveyancers…has sourced, recommended and according to its CEO, Geoffrey Adam, is supporting and backing a group known as ZIP ID to undertake the verifying agency work.

When they went to an information session about it they found out about this service that, firstly:

It only operates in suburban South Australia. It will not allow its staff to witness RPA documents…It has teamed up with the Toll courier business. Toll's courier drivers will attend on clients (but only in the suburbs) at which time clients are required to hand over their original passport, driver's licence and any other highly personal and sensitive documents so that the courier driver can scan and electronically send them to all corners of the known universe via the internet. The courier driver will also photograph the client and send the photograph via email to ZIP ID.

Keep in mind that courier drivers are employees or contractors of Toll and earn their living by delivering the most number of parcels and documents whist taking the least amount of time during any given day….

A range of issues was suggested. What do they do about a client:

1. whose first language is not English;

2. who may be vision impaired;

3. who may be hearing impaired;

4. who may be speech impaired;

5. who may be illiterate;

6. who may be frail and/or terminally ill (with the very real possibility they [won't] bear any resemblance to their [actual] photo ID…

She goes on to state they may be confined to bed at home or in hospital. They may be a shift worker. They may be affected by drugs or alcohol. They may be in prison or a secure facility. They may be a minor who has no photo ID. They may need to collect children from school and not be able to wait around for a courier driver if they are late. The letter continues:

There was no indication as to whether or not the courier drivers' first language will be English or even if it is, whether or not he or she will have the ability, time and/or inclination to provide meaningful advice relating to the verification documents and/or properly communicate with clients.

A passport and driver's licence can be up to 10 years old and signatures on both can be vastly different—

especially because they squeeze them down. She continues:

How can Conveyancers be expected to compare the signatures on copies of copies with an original signed document in full size? Conveyancers are not handwriting experts. Is close enough good enough to satisfy 'reasonable steps'?

I understand that only a current passport, driver's licence etc is acceptable for identification purposes. If my passport expired yesterday, I am still the same person today. It seems absurd that an expired passport cannot still be useful for identification. Perhaps a five year time limit should [be used].

I will not go through all of this, because I will run out of time, obviously. The letter continues:

No reasonable person would believe the above process is actually going to eliminate the opportunity for fraud, identity theft etc. Anyone with even the most basic insight into and sensitivity as to human nature can see the opportunities available for fraudsters to take advantage of South Australians. It is an open door to assist fraudsters to gain access to the property, safety and security of innocent persons who place their trust in your office—

she is referring to the Registrar-General—

the South Australian Government and Conveyancers. In a nutshell, any problem which may exist has not been solved, it has only been moved.

In the event anyone suffers as a result of fraud by the verifier or any person employed, contracted or otherwise connected with the verifier's business or any person who gains access to the documents scanned by the courier driver and stored by ZIP ID (or other agency), the client will place responsibility on the Conveyancer for having introduced the verifier's service. This may not concern personnel at your office but it most certainly causes me a great deal of concern.

She goes on to ask the Registrar-General whether he would hand over his original passport, driver's licence, etc., to a courier driver to be scanned. I will not have time to do all of this, Madam Deputy Speaker, but she says:

It is not appropriate, in any event, for your office to absolve itself of all liability relating to the integrity and proper maintenance of the Register 'Book' by forcing Conveyancers to take on the responsibilities of your office and further make it the responsibility of Conveyancers to find a solution for the problems your office has created.

If your office wants its 'policy' implemented, your office must find a satisfactory solution which will enable all clients to comply with it easily, safely and at no cost to Conveyancers and clients.

I am about to prepare a Transfer for sale of a property by a guardian pursuant to a Guardianship Order. In that situation [after this is introduced] and bearing in mind one purpose of the VOI is to confirm that the correct owner is selling the land, would I have to obtain VOI for both the guardian and the mentally impaired land owner? If so, how would a courier driver go about handling that situation and why should a mentally ill person be subjected to that process?

I have not been able to find a way to verify a client's identity who, for example, lives in Andamooka or Roxby Downs, is confined to bed because of illness…or who works away from town in a mining camp. Perhaps your office can [offer] a solution for that and similar problems.

I am just trying to summarise this as I go. She continues:

Relatively recently I was contacted by a person whom I understand…has been in prison for fraud and apparently who makes a habit out of defrauding innocent people—

I won't name him—

When I told him, politely, that I would not be acting for him, he became aggressive and threatened me, both at the time and by leaving a menacingly threatening message on my office voice mail. I am a sole practitioner and I was genuinely fearful of his threats.

She goes on to say that if she refuses, as a conveyancer, to continue with a transaction because of these VOI requirements, she believes she may be placed at risk.

I do not understand why, when a Real Estate Agent is acting for a vendor, that it is not that agent's responsibility to verify the bona fides of the person(s) purporting to be the vendor(s)/owner(s) of the property and to note the verification on the contract document.

I would have to say that there is some sense in that, that they are going to have a much longer association with the person generally. It continues:

I understand it is done that way in W.A. The CEO of the [conveyancing institute] believes Real Estate Agents would not co-operate because they are only interested in collecting their commission…

I make no comment on that. Furthermore, this author makes the point that:

I have been advised that there is no legal requirement for people to purchase property in his or her legal name. It is not illegal to have an alias, people can call themselves whatever they want. Providing they are not using aliases for the purpose of defrauding the Commissioner of Stamps, Land Tax etc, people are entitled to own property as they see fit. It is not ideal for many reasons but it is not illegal. I therefore do not understand how your office can deny law abiding citizens from using whatever name they wish and owning property in that name if that is what they wish to do.

I will hand to my colleague.

Mr GARDNER (Morialta) (16:10): To enable the Attorney-General to completely respond to the member for Heysen's suggestions and questions that she has raised, I will continue to put on the record the rest of the correspondence from the conveyancers. I particularly note the president of the conveyancers at the time, Geoffrey Adam, who is one of my constituents and who I served with on the Campbelltown Residents and Ratepayers Association for a couple of years—a fine individual and a significant contributor to my community. So, I am pleased to be able to help the member for Heysen, whose time has expired. The letter goes on to say:

At the recent AICSA information session, Geoffrey Adam announced that Conveyancer's Professional Indemnity insurance premiums definitely will increase because Marsh has already identified the additional risk to Conveyancers as a direct result of the implementation of the VOI Policy. Was any thought or consideration given at all in that regard by your office? If so, does your office expect Conveyancers to absorb the additional cost or is your office happy for Conveyancers to bear the increased liability or for the increased costs to be passed on to the South Australian public?

Because of the extra time required to comply with the Policy, there no doubt will be settlement dates which simply cannot be met. Most vendors and purchasers have full time jobs which is why they are able to purchase and own real property. Most vendors and purchasers cannot simply "down tools" and take time off from work to attend to the verification requirements. Real Estate agents, lenders and the LTO are not parties to contracts so they are not liable for the payment of any default interest and/or other expenses incurred due to a delay in settlement. Again, is your office happy that those extra costs will be paid by clients?

In June 2013 I paid $90.00 (plus GST) and invested my time to attend an afternoon seminar to learn about the Government's new VOI Policy. I understand some conveyancers paid considerably more to attend other seminar(s). All such seminars should be free of cost to Conveyancers and the respective amounts paid should be refunded.

I note that the SA Government has done very little in advising the public of the implementation of VOI. There does not appear to be anything like an effective media campaign and additionally the Government has not even assisted legislatively in that it could have regulated in the recent updates to ensure Real Estate Agents are required to provide vendors and purchasers with an information sheet (similar to the R3) with the Form 1 disclosure statement which advises "Your settlement will be delayed unless you are able, immediately, to arrange VOI" (or something similar to that wording).

Conveyancers understand that with the new electronic conveyancing system, clients will not be required to sign RPA documents and instead conveyancers will bear 100% of the burden and liability of having to sign on behalf of and vouch for their clients which is why the necessity has been "created" for Conveyancers to verify the identity of their clients. Unfortunately not all clients possess the ID evidence required, they do not all live in metropolitan Adelaide and not all are available during business hours to attend at the office of their Conveyancer. Not all Conveyancers have a spare half hour or more (per client) in which to stop working and sit down with the client to complete the process necessary to comply with the VOI Policy.

Many clients will have to expend a considerable amount of money (at other Government Departments) and wait an unreasonable amount of time (remember contracts have settlement dates and default clauses) in order to obtain the ID required to comply with the Policy. I can see problems occurring when clients attempt to obtain copies of their ID documents in a short period of time.

I am asking you, in the interests of Conveyancers and the Australian public, to consider all of the points I have made, for common sense to prevail and for the VOI Policy in its current proposed format to be abandoned as being unworkable and unsafe for Conveyancers and for the majority of clients. The VOI Policy will cause additional risk and expense for Conveyancers and clients and it will seriously jeopardise the timely completion of many contracts which will cause considerable hardship for clients who have other commitments and who may not be able to change moving arrangements when settlement is delayed.

Yours Faithfully,

It indicates a number of conveyancers who attach themselves to the concerns raised in the relevant letter. I indicate to the Attorney-General that I am pleased I have been able to assist the member for Heysen in her comments and in sharing the concerns raised by the conveyancers. I am sure that he will take the time now to respond to these issues in his summing up of the debate. There is of course the opportunity for the member for Heysen, who has raised these concerns, to pursue that issue further in committee if the Attorney-General chooses not to, but I indicate that he may have made this a lot simpler by addressing these concerns in his initial correspondence with the conveyancers concerned.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Housing and Urban Development, Minister for Industrial Relations, Minister for Child Protection Reform) (16:16): I have a couple of things in no particular order. The first one is in relation to some of the comments the member for Bragg made. I do not think it is any secret that I am not a big fan of national competition policy or some of the mandated oddities that have emerged from that place.

I remember that, for the first couple years I was in this place, the member for Bragg's good friend and my good friend the former member for Stuart and I spent most of our time arguing about the proposition which was bizarrely, from my point of view, being pursued by the farming community. They wanted the barley board dismantled so that we could have market forces in there, and hasn't that been a ripper of a success!

I gather there were some particular points raised by the member for Bragg, and I will just go through them very quickly. On the impact on the Lands Titles Office, the vast bulk of the work is automated, so the impact upon the office is limited. On the impact on consumers, priority notices remain an optional measure although take up of the notice is expected to be quite high.

Priority notices will have a fee consistent with other states, and the fee will be minimal. I am advised that is presently around the $20 mark. Incidentally, it would not be reasonable for one jurisdiction to get completely out of whack with others either. That would transparently mean there is a problem in that jurisdiction. Elsewhere it is around $20 so, unless we are completely hopeless, which I am assured we are not, we would be landing at around the same spot.

On the impact on consumers of verification of identity, the introduction of the policy was in April last year, which is something I think Mr Adam and others who are agitated about this bill are not actually picking up on. This bill is not what introduces that change. That was something that came in in April last year as a result of legislation that came in some time ago, so there is not much point in—

Ms Chapman interjecting:

The Hon. J.R. RAU: Sure, but the fundamental principle of verification is something that is already in place, and this is not an appropriate vehicle for re-agitating that proposition. Anyway, since the policy came in: transfers, 36,066; mortgages, 42,157; transmissions, 2,554; deaths, 2,490; substitute certificates of title, 718. These stats show that there are many transactions that have occurred with VOI requirements in place. There has been little complaint from industry or consumers about the requirements, I am advised by the registrar. It has been in place now for 10 months. All that this legislation does is confirm that the Registrar-General has the power to implement the policy and to enforce the policy.

On the impact on the Lands Titles Office, verification of identity checking is conducted by the agent to the transaction in most cases. There is very little resource impact on the government to enforce the policy. As far as crown leases are concerned, this component of the bill simply updates the Real Property Act to clarify that there is an express power to register or record dealings with crown leases which reflects the current and historical practice of the Registrar-General. The bill also clarifies the fact that crown leases are indefeasible. That is a word I remember from my days at law school.

Ms Chapman interjecting:

The Hon. J.R. RAU: Osmanovski and Rose, Tadeo and Catalano and so on.

The DEPUTY SPEAKER: Is that Latin for something or are you quoting?

The Hon. J.R. RAU: No, they are just four unfortunate people. It is subject to being consistent with the act under which they are granted. I hope that addresses many of the matters raised by the member for Bragg. As for the lengthy correspondence from Mr Adam that was read into Hansard, in fact all of the matters are not pertinent to this particular bill, they are to do with the establishment sometime ago of the validation process.

Many of the issues raised by Mr Adam are not issues that have been raised by the governing body of that group of people, in fact, they are supportive of this. It is my understanding, from what I have been told, that the views expressed by him are not necessarily the views of the management in terms of the sector that he is involved in. Some of the comments raised in that rather lengthy contribution amount simply to questions about 'Why don't we shift the cost or the responsibility onto somebody else like a real estate agent or whatever?' Again, those issues are basically trying to re-agitate what has been the status quo.

Let us bear in mind that the introduction of the validation provisions has not actually, as I understand, changed who has to do what. In other words, it has not moved responsibility for the establishment of identity from the agents who used to have it onto the conveyancers who never used to have it. It merely recognises the then established fact that conveyancers were always supposed to do it, but in some cases the practice had grown up of them being satisfied by sending a letter to somebody they had not met, and receiving a signed letter back from somebody they had not met and assuming that was okay.

The fact that they had adopted what objectively was a fairly suboptimal practice in the past, and they were enabled to get away with that without there being anybody getting particularly upset about it and, incidentally, I guess, not a great deal of fraud perpetrated as well, otherwise we would have heard about it, nothing in that respect has changed. The goal posts in terms of the relative obligations of land agents versus conveyancers in any transaction has not been disturbed at all. It is simply the process by which the identity of the individual who is seeking to be registered officially as the title holder is established. That is the only bit that has changed; not who is doing what.

With those few words, I think probably the best thing is to go into committee but, before we do that, I have one amendment. I know the member for Bragg has indicated, and I thank her for that, that the opposition will be at least in here supporting this. I can say this to the member for Bragg and the member for Heysen and anyone else who has outstanding issues, if there are things that occur to people between here and the other place, I am happy to arrange for the Registrar-General to sit down with you and answer any questions you have.

He is a very accommodating fellow. He has come and sat down with me several times. I usually start with, 'Why are we doing this?' He says 'It's a national competition thing,' and I go, 'Oh my God, not another one of these.' Then he says, 'Well, it's actually your fault,' pointing at me and I say, 'It's not my fault,' and he says, 'Well, it's not my fault.' But, anyway, somebody decided this a while ago and everybody is on this train. I think the member for Bragg did acknowledge, and she is right, as occasionally she is, that we do now live in a digital age and there are those of us who wish to cling onto our parchments and quill pens and those quaint little rituals in the Lands Titles Office.

The Lands Titles Office was absolutely terrific. I can certainly remember, as I know the member for Heysen and the member for Bragg would recall, as a very junior member of the legal profession that you got sent down there and, in my case at least, I had very little idea what I was doing, and there were people there who would.

Ms Redmond: That's stayed the same, John.

The Hon. J.R. RAU: As the member for Heysen says, not much has changed. Perhaps she is right. Then they had people who were conveyancers who seemed to know everybody and exactly what was going on. The place had a certain smell of dust, old leather, old parchment and very large leather-bound volumes. There was something sort of—

Ms Redmond: Magical.

The Hon. J.R. RAU: Magical, yes. It was almost a Harry Potter Diagon Alley place to go, and I am sad that that is all to go.

The DEPUTY SPEAKER: We're all getting nostalgic now.

The Hon. J.R. RAU: We are. The thing is that, if there is anything that I can do and that the Registrar-General can do to provide information or answers to questions between here and the other place, I make that offer. I just would ask that we make a reasonably swift disposition of this matter here, and then the Registrar-General—I am going to make a commitment on his behalf—will sit down with all of you for as long as it takes to make you happy. How is that for a commitment on his behalf? He knows all the answers and he is absolutely chapter and verse on this. That is the offer—as much briefing and as many answers to questions as necessary. If anything emerges from all of that which can be resolved without making us completely out of sync with the national scheme, which would defeat the whole thing—

Ms Redmond: Why does it matter?

The Hon. J.R. RAU: A bit like the member for Heysen—so what? But, there you go, that is the object, that we—

Ms Redmond: Dare to be different.

The Hon. J.R. RAU: Unfortunately, in this case I suspect the moment for that was some time ago.

Ms Chapman: It's been four years, five years.

The Hon. J.R. RAU: This predates me.

Ms Chapman: No, 2013.

The Hon. J.R. RAU: No, the critical decisions about these things. I do think we have to accept we are in a digital age. There is a whole bunch of things that are going to have to change, and this is one of them. I thank all members for their contributions.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

Ms CHAPMAN: This bill incorporates a verification of identification, a priority notice reform and some tidying up of some other areas, including the registrar's responsibility to be the keeper of the crown leases list. There are other reforms that are on their way to us, which include the question of how we deal with the client authorisation on the basis that, ultimately when we have electronic conveyancing registration, it will not be the client who signs: it will be the lawyer or conveyancer who signs on behalf of that party, and how are we going to deal with that. We have to bear in mind that courts around Australia already have electronic lodgement of documents which frequently do not have a process which incorporates even the scanning of a signature—there is an authorisation process electronically on behalf of the settling party of the document, for example.

The second area, of course, is—and I think it will be a very sad day—that we get rid of duplicate titles altogether. We have heard a bit about those great big dusty books which have the original B type; I cannot remember what size they were, but it was bigger than the normal in those great big books. The keeper of the records had one and the lawful owner had the other one, and if you lost that beautiful document you went through a process to get a new one. Everyone had their copy as such.

To be fair, with the indefeasibility rules, that was in fact the very important signature of South Australia's development through the Torrens title system that has been adopted around the world, and we should be proud of it. This question of moving to not having a title but just having an electronic record with the keeper of the rolls, as such, is obviously coming to us soon. When is this going to occur, Attorney?

The Hon. J.R. RAU: I am advised that the actual dispensing with the duplicate CT is something which has yet to be determined as a matter of policy. It is certainly something which is sitting around the place as a proposition and it is something that the Registrar-General and I have had a conversation about. I am a little bit of a nostalgia type—a little like the member for Bragg I expect—and I certainly said to the Registrar-General about the notion that people should at least be able, if they wished, to get some piece of paper which may or may not have legal standing in the same way as a current duplicate. That is a policy issue again.

I have expressed the view (my personal view at this stage only) that I see some merit in that. In fact, I did suggest, I think, to the registrar that, if I were given the time, I would do something in the way of designing what it might look like, with some sort of heritage look about it. I am all for it personally, but it is a policy conversation we have to have.

Ms Chapman interjecting:

The Hon. J.R. RAU: Same thing, I am told.

Ms CHAPMAN: When that is introduced, Attorney, perhaps you can indicate where it is actually operational in other areas and what review has been done of that, on those two areas which of course are—

The Hon. J.R. RAU: If I can summarise what I have just heard, New South Wales and Victoria are further down the track with the electronic thing. They have as yet not removed the duplicate certificates of title, but they are working down that path. Apparently, there is some national consensus to the effect that duplicate CTs do not have a role in the future.

Ms CHAPMAN: Aspects of this which, of course, I suppose to some degree act as protection for the Lands Titles Office have been presented to us really as though this is protection for the consumer, these processes that you are introducing. Minister Gago is the Minister for Consumer Affairs. Has she or her department been consulted on this in respect of the element of protection to consumers?

The Hon. J.R. RAU: I understand that there is an internal working group within the Registrar-General's place which has a representative from that department on it, and obviously there would have been, in the context of the cabinet process, a circulation of this proposal and an opportunity for that department to make comment. I do not think the Registrar-General recalls having sat down specifically with minister Gago and gone through this. I can say that, as a matter of proper cabinet process, which this did go through, the process is that the document is circulated and opportunities are there for other agencies to make whatever comments they might wish to make, and that would have obviously included hers.

Ms CHAPMAN: The reforms in relation to crown lease, which are referred to in the bill, also make amendments to the Pastoral Land Management and Conservation Act 1989. During the course of my contribution, Attorney, I raised the question about the fact that there is a crown tenure unit within the Department of Environment which substantially deals with the pastoral leases in the state to the extent of setting whatever the fees are to apply to pastoralists, stocking rates, and pest control management, etc. For reasons that I explained, we do not take issue with that except that we are not overly happy about them getting rid of the Pastoral Board under another piece of legislation before the house, and we will be voting against it.

What I have raised is how this is going to work in respect of pastoral leases. How does it work now and will this change it? Crown leases are dealt with by the Registrar-General to the extent that he has a role in keeping a register of them as part of the whole registration process. Again, we do not take issue with that, but I just want to know how it currently works in relation to pastoral leases. Are they included in that (clearly, you are going to be amending the legislation), and is there any proposed change for them? At the moment, one is the keeper of the rolls, as such and the other one sets rules in relation to it.

The Hon. J.R. RAU: I am advised that the role of the Registrar-General's Office is simply to maintain a register of any such lease. They do not regulate the terms, or whatever; they simply record the fact of there being a lease, who the leaseholder might be, the term, the registered mortgage, or something of that nature, but that is all. They are not responsible for stocking rates or anything else.

Ms Chapman: Nor would they want to be.

The Hon. J.R. RAU: No.

Ms CHAPMAN: My only other concern about this bill is the verification of identification process, Attorney. As you have rightly pointed out, for electronic conveyancing purposes, you are putting into statute the current policy which applies for paper transactions. I understand that, but now we are being asked to consider, under the 100 point system, the formalising of the use of passports and driver's licences for the purposes of that identification process as the two primary documents. Obviously, over the last 100 years, passports have developed, principally since World War I, and more and more people have them. They are not universal, obviously, and they are quite a valuable document for identification purposes and are used. They attract, in this 100 points scheme for banks, taxation requirements and so on, quite a value.

Then we have driver's licences. Driver's licences are issued by the Registrar of Motor Vehicles and they expressly provide on them that they are not authorised to be used for identification purposes. I am sure the Attorney would have seen what is written on the back of his driver's licence. Whilst it might be a process which is commonly used, you are the Attorney-General as well, so I will place on the record what it says on the back of a driver's licence. In particular, it says:

Use of this permit/licence for identification purposes, other than for policing road traffic laws, is not intended or authorised, and is solely at the risk of the user.

My question is: whilst this has been an informal and commonly used form of identification, we are now being asked to put it into statute. Is there some sort of memorandum of understanding or some sort of internal document in which the Registrar of Motor Vehicles approves, in this instance the register in relation to documents and records surrounding real property, its formal use for identification? If not, why are we putting into statute a particular document for which notice has been expressly given that it is not authorised to be used?

The Hon. J.R. RAU: The answer to the first question is no, there is no memorandum of understanding or otherwise with the Registrar of Motor Vehicles. The second point is that, as the honourable member has pointed out, a passport, which is obviously a pretty serious document issued by the Australian government, even these days is not something held by everybody. To provide for a scheme which only operated effectively for those people with a passport would in effect disenfranchise or discriminate against those people who did not have one. One could speculate on which group in the community is more or less likely to have a passport, but clearly that would not be satisfactory, so some other reasonably common alternative source of some degree of validation is obviously desirable.

Whilst the passage that the honourable member read out from the back of her licence acts as a disclaimer, I think that is basically a disclaimer issued on behalf of the Registrar of Motor Vehicles to other people seeking to rely on the verification processes of the registrar that they do so at their own risk. I interpret the way in which this is proceeding that the Registrar-General in this instance is of the view that by and large the provision of a driver's licence is a reasonably robust composite element to an identity validation process and that there is at least some rigour attached to that process, just as one would accept a bank account, a MasterCard or whatever as another one, where you can be pretty confident that some rigour has been attached to it. If you have a number of these things or a cluster of these things, taken collectively, they represent some sort of reasonably strong indication of identity.

To go back to the earlier point, bear in mind that this is in the context of where, up until recently, the practice though not the law has been that somebody is sent out the transfer documents in the post, they execute those documents with an appropriate person—maybe or maybe not, but the only person who knows whether they are the appropriate person is the person standing next to them or indeed the person themselves—they affix a stamp, and that is only as good as the truth of what it says, and there is nobody checking that. That pops in the post and that goes back to the conveyancer, who then does something.

The only point I am trying to make is at least the requirement of the provision of a driver's licence and, for example, a credit card or something actually has more rigour than that. I accept the point that it is not perfect, but if we get to the point where we are saying passport only, you would get to the absurd situation where somebody would have to obtain a passport in order to buy or sell a house which would be a bit perverted.

Clause passed.

Clauses 2 to 10 passed.

Clause 11.

The Hon. J.R. RAU: I move:

Amendment No 1 [AG–1]—

Page 10, lines 18 to 28 [clause 11, inserted section 154G(1)]—Delete subsection (1) and substitute:

(1) A priority notice ceases to have effect if it is withdrawn under section 154E or cancelled under section 154F.

(1a) If the instruments identified in a priority notice that has not been withdrawn or cancelled are lodged in accordance with section 154A(4) before the end of the applicable period following the day on which the notice was lodged, the notice ceases to have effect when each of those instruments has been registered, recorded, withdrawn from registration or rejected by the Registrar-General.

(1b) If the instruments identified in a priority notice that has not been withdrawn or cancelled are not lodged in accordance with section 154A(4) before the end of the applicable period following the day on which the notice was lodged, the notice ceases to have effect at the end of that period.

(1c) Subsections (1) to (1b) operate subject to any order of the Tribunal under section 221.

Amendment No 2 [AG–1]—

Page 10, line 29 [clause 11, inserted section 154G(2)]—Delete 'subsection (1)' and substitute 'this section'.

I think I might have done Mr Adam a disservice in my earlier remarks and for that I wish to apologise. Mr Adam, as I understand it, is in fact a supporter of these changes and I think the comments I made might have suggested otherwise. To the extent that Mr Adam may be hanging off his crystal set listening to this and upset by what I said, Mr Adam, I apologise.

Ms REDMOND: I have some questions on clause 11. I think, yes, the Attorney is correct that Mr Adam as the then—I do not know whether he still is—president of the South Australian Institute of Conveyancers was one who was in favour of it. The letter that I was reading and that the member for Morialta was kind enough to continue reading was, in fact, by a dozen other very well known conveyancers, and with no disrespect to Mr Adam, it was clear from the number of signatories of the number of people who endorsed the views of the conveyancer who wrote the letter, it was by no means settled that the conveyancers of this state were satisfied with that situation.

In clause 11 and in particular 154A(10), I would like to explore the ones that I referred to in my contribution and they are subsections (10), (11) and (14) of 154A. Firstly, the Registrar-General in subsection (10) 'is not required to inquire into the content of a priority notice in order to determine whether that content is correct'. I just wonder if the Attorney could explain to me how that will actually work in practice. Is it, as the member for Bragg may have suggested this morning, that the lodgement will simply be by an electronic means from a conveyancer's office and as soon as the button is pressed in the conveyancer's office then that will effectively create a priority notice?

The Hon. J.R. RAU: I am advised that the answer to that question is yes.

Ms REDMOND: I am a little puzzled as to how there is any checking. We are going into all this detail about the verification of identity. I know there is a provision in there that says the Registrar-General can decide that someone is a nuisance lodger. Heaven forbid there might be a conveyancer who is going to become a nuisance in lodging priority notices, but what is to stop someone who might just have a beef against a particular individual from lodging a one-off priority notice onto a property, given especially that it goes on to say, of course, that the Registrar-General under subsection (11) is not required to advise the registered proprietor of the land or any other person that such a notice has been lodged?

The Hon. J.R. RAU: I thank the honourable member for her questions. I am advised as follows. There are two elements that might be of assistance. The first thing is that, if you look at subsection  (12), you can see that the Registrar-General can 'determine that a person is a vexatious lodger of priority notices'. It is a terrible thing to have hanging around one's neck, I would have thought. He also can actually cancel such a notice if he forms a view that it is not appropriate. If I can take you to page 11 of the document, to 154I, you can see that there is a consequence for somebody that goes about doing that.

Ms REDMOND: I said in that question that I am aware of that provision of subsection (12), that a person might be vexatious, but how is anyone going to know that it is a vexatious lodgement if it is simply a button pressed in a conveyancer's office that nobody on the receiving end receives or checks, and there is no obligation to let the person whose property it is know? Where do you get to the point that you know there has been something?

I would suggest, in fact, that to be vexatious, as with a vexatious litigant, you would have to have more than one occasion, for a start. If there is only one occasion, because someone has some beef against another person and they get this priority notice lodged, where is it ever checked? When is the person who owns the land told that this notice has been lodged, without impediment, and that it affects their land?

With respect, I would suggest that, notwithstanding 154I, the idea that what we used to call a bona fide purchaser for value without notice—the innocent party in this transaction; the owner of the land who is adversely affected—then has to take a court action to enforce their rights under section 154I, seems an extraordinarily cumbersome thing for the response to what could be avoided, it would seem to me, if there was some sort of testing process on the priority notice lodgement in the first place.

The Hon. J.R. RAU: I think the answer goes something like this: between the moment of the lodgement and 60 days, if a person discovers, because they are wishing to deal with their property in some respect—you would not necessarily discover it otherwise—that there is a notice, and a person believes that notice is not appropriate, vexatious, or whatever it might be, they need to notify the Registrar-General, who would immediately investigate that matter. If they were satisfied that there was doubt, or that it was not appropriate, they would immediately revoke the notice.

After 60 days the notice lapses anyway. So, we are dealing with a particular window of time during which, if the individual becomes aware of the notice and is adversely impacted or decides that it is just not the right thing, the recourse in the first instance is not, member for Heysen, to the court; it is to the Registrar-General. Later on, if it turns out to be a consequence, like a settlement was messed up, or whatever happened, then they are given a right of action under 154I.

Ms REDMOND: How does the Registrar-General make that determination, and is it going to be made in person by the Registrar-General, or is that authority delegated to other people? To what extent is the Registrar-General authorised to inquire, and how does he go about it? What authority does he have to require documents and evidence to be produced to substantiate whichever side is claiming the right or the wrong to be done?

The Hon. J.R. RAU: I am advised by the Registrar-General that, first of all, he does it himself. Secondly, the relevant provision, operative provision, appears to be 154F(1). The other point that has been made to me is that, apparently, in Tasmania these sorts of notices have been in operation for 20 years and, apparently, there have been no applications there. Now, let us not speculate as to why, let us just take that as a fact.

Ms REDMOND: Thank you, that inspires a lot of confidence, I am sure. The Registrar-General will, no doubt, be pleased to know that when I progressed from my early adventures in conveyancing I progressed to being an adviser sitting in one of those boxes in the New South Wales House of Assembly. Attorney, subsection (14) of that same 154A, and I mentioned it again in my speech, refers to the fact that a priority notice may be lodged in relation to a single certificate of title, more than one certificate of title (no problem with those), but I am really curious about how you lodge a notice over 'a portion of the land comprised in a certificate of title'?

The Hon. J.R. RAU: I am advised that this deals with, in particular, two things: a community title, where you might have, as you would appreciate, a part of an undivided whole, and likewise with a lease, where the lease may be a lease over a part of a certificate of title's land but not the whole of the land.

Ms REDMOND: If you could possibly provide me with an explanation of the provision of section 154B, the effect of the priority notice, where it says that, if there is an instrument, so a transfer, mortgage, or whatever, lodged in the Lands Titles Office or served on the Registrar-General—and I would like to know what documents are lodged in the Lands Titles Office as opposed to what documents are served on the Registrar-General—while a priority notice is in force the instrument may not be registered or recorded until the priority notice ceases to have effect.

Am I right in assuming that, from what you have said, that either means that you put in your document and it will not be registered until the expiration of 60 days from when that priority notice went in, or until you are given notice that, 'Hey, you've lodged your transfer, mortgage, whatever, but we're not going to register it'? I want to know whether there is notice then given to the person, because all of the stuff until now says this priority notice has not been notified to the owner of the land? Do you, at that point, get notified that you are not going to get your document registered, or is it just going to sit there and not happen until the 60 days is up?

Having got that far, you have got, I assume, some sort of notification from the Registrar-General that you are not going to get your document registered, either until the 60 days expires or, if you get the notice and you object to the priority notice having been received, you then have the chance to, presumably, go in and talk to the Registrar-General and say, 'Hey, this is all because my ex got angry with me and has done this thing that shouldn't have been done,' and satisfy the Registrar-General that the priority notice should be removed. Am I correct in my understanding of all of that?

The Hon. J.R. RAU: I am advised that what you have just said, member for Heysen, is correct and that the policy would be that, in the event of the office becoming aware of the fact that there is an unregistrable instrument sitting there by reason of one of these notices, the practitioner who has filed the instrument would be notified that the instrument will not be able to be registered by reason of the existence of a notice.

Ms REDMOND: Can the Attorney advise me what then is the impact of proposed new section 154D on page 9, which provides:

The Registrar-General is not required to inform a person who lodges an instrument affecting land in relation to which a priority notice is in force that the instrument cannot be registered or recorded…

That seems to fly in the face of the idea that, when you put in your instrument, you will get notification that there is a priority notice on that, it will not be registered, yet section 154D seems to say exactly the opposite.

The Hon. J.R. RAU: I am advised that that apparently is there to give them the flexibility of doing basically what they want—

Ms Redmond: Like Tasmania.

The Hon. J.R. RAU: —possibly—but their intention is that their policy would actually be as I indicated in the previous answer. I do get the member's point, and it is a very good point, quite frankly. If the member wants to talk to the registrar and/or me about this between the houses, I would be happy to have that conversation because it does strike me that a person who is being disadvantaged by reason of one of these notices appearing should be aware, or at least an attempt to make them aware should be made by the registrar. That does seem to me to be basic fairness.

Ms REDMOND: It is a long time since I have done any conveyancing, but my recollection is that caveats, for instance, would be notified, and it strikes me that this should be no different, in practice. One other question on this clause is on the paragraph immediately above that, 154C. It gives an incredible level of discretion to the Registrar-General:

Instruments identified in a priority notice are to be registered in the order in which they are given priority in the notice unless the Registrar-General considers there is good reason for registering the instruments in a different order.

On the one hand, I can see that that is a perfectly sensible provision because, if someone happens to hand in or press the button in the wrong order or whatever it might be and you have the transfer and the new mortgage before the discharge of the old mortgage, obviously there is a need to be flexible. But what guarantee do we have that that provision will not be used, with no offence to the Registrar-General—say another Registrar-General in twenty years' time—to disadvantage someone who should have priority and, by dint of the fact that the Registrar-General has complete discretion as to what order these things are going to be in, that provision enables the Registrar-General to prejudice the rights and entitlements of the person who should have priority?

The Hon. J.R. RAU: I am advised that this is to deal with the first point the member for Heysen made in her question and that other provisions in the legislation would still mean that, as a matter of practice, a discharge document would need to precede a transfer document and so forth.

Ms CHAPMAN: I thank the member for Heysen for raising some of the matters in the new part 13A—Priority notices. There are a couple of things I would just like to clarify. Firstly, of the list of exempt transactions that will not be affected by priority notices (and they are quite extensive), I have not specifically seen in there provision for debts owed to the commonwealth. Are they covered under paragraph (i), that is, an instrument lodged by the Crown? I am talking particularly in relation to income tax liabilities, which have certain priorities too. Is there some provision for that or not?

The Hon. J.R. RAU: I am advised that that one needs a little more time. We will look at it between the houses and we will get back to you.

Ms CHAPMAN: Under proposed part 13A, which, as I say, sets out the arrangements for how priority notices are to be treated and to operate, is this the same as the regime that applies in Tasmania, where it has now had a period of time to operate? If there are any differences, what are they? If it is a long list, I am happy to have it between the houses.

The Hon. J.R. RAU: I am advised that broadly speaking it is similar to the Tasmanian scheme. However, there is apparently a reasonably substantial difference in Tasmania, in that the exemptions that are provided for in this, I think, do not exist there, and they have pretty well an absolute priority notice situation, so there are differences in that respect.

Ms CHAPMAN: My understanding is that in Tasmania their priority notices only relate to and are capable of being registered in respect of mortgages and transfers; is that right or not?

The Hon. J.R. RAU: No.

Ms CHAPMAN: No. In any event, if we can have some—

The Hon. J.R. RAU: We will have a look at it between the houses, if you wish.

Ms CHAPMAN: If we could get a response on that.

The Hon. J.R. RAU: Yes.

Ms CHAPMAN: In relation to some matters which arise out of the questions from the member for Heysen, the caveat procedure, I think it is fair to say, is an important notice—'buyer beware'—to the process for the protection of certain interests or at least notice to people of prospective interest. I think it is fair to say that it is one which has been pretty effective, but it has been open to abuse by people who are vexatious, or mischievous or just generally pains in the neck, and who want to cause some inconvenience at the least to the registered proprietor.

The process, as I understand it in short, is that, provided you have a caveatable interest that is pretty much defined by the law and you can register your notice, the registrar is obliged to give notice of that to the registered proprietor within a certain time frame. A notice to remove can be lodged by the aggrieved registered proprietor, who says, 'Well, it's a nonsense. They've got no caveatable interest,' and, essentially, there has to be then some justification by the person lodging the caveat to confirm that they have a caveatable interest. It is a process where you can put a notice on, it does not just expire automatically, but it can be removed with another simple process if the registered proprietor is aggrieved, and then the heavy duty end of it comes to establish that you have a case to justify holding it on there.

I appreciate that that is often for a substantial interest that is claimed, but clear notice is given. In this instance, it is not registering a caveatable interest; it is just simply telling the world that you are going to take priority over someone else's registration for another mortgage or whatever; nevertheless, it can be open to abuse if there is no notice given to the registered proprietor. Even if there is no notice under the Tasmanian system, I think it is reasonable—we are in the electronic age—that the registered proprietor at least receive a letter by prepaid post and/or email and that would help to resolve in our mind, on our side of the house, some of the concerns that we would have.

If the priority notice is to register a proposed borrowing from a bank, for example, and a notice comes to the owner of the property to say that that notice of priority is going on and they know that they are selling it, etc., they may say, 'No problem, I won't be acting on it to take it any further. I know that the prospective purchaser has signed a contract with me and that they are getting a bank loan, etc.' It will not cause any inconvenience other than a very simple notice to the registered proprietor which, if not acted upon, then would follow this process of cessation by the elimination of time. I would like the Attorney to consider that between the houses and it might help resolve some of the problem.

The Hon. J.R. RAU: Can I say that I am very sympathetic to that proposition because the notion that any individual has some interference with the dealing that they might otherwise wish to do with their property descend on them without knowing anything about it and without having an opportunity to agitate either with the Registrar-General or the person putting up the notice seems to me to be inherently not good. I am happy—

Ms Redmond: That's natural justice.

The Hon. J.R. RAU: Yes. I am happy to have a chat with people about that. I think it is a good point and it is worth looking at.

Amendments carried; clause as amended passed.

Clauses 12 to 14 passed.

Clause 15.

Ms REDMOND: I want to ask one question about clause 15 and the provisions of section 232 certifying incorrect documents. My concern is simply that subsection (1) at the very beginning says, 'If a person falsely or negligently provides a certification'. I worry about the use of the term 'falsely' because there could be a false certification with no intent, it seems to me. Whilst my assumption is that the provision is intended to catch someone who either deliberately or negligently falsely certifies, the wording, it seems to me, potentially could catch someone who is not necessarily going to be found negligent but falsely does certify. I just worry about that and I wonder whether consideration has been given to any other wording.

The Hon. J.R. RAU: I would be happy to have a look at that. We can all read these things in different ways, arguably, but I would think they are trying to capture two circumstances—the person who, without any negligence at all, deliberately falsely does something and then, secondly, the person who does not set their mind to doing it but is either so incompetent or reckless about what they are doing that they wind up doing something that is false. It might be a bit inelegant that those two different concepts are wrapped into a single sentence, and I will ask parliamentary counsel to have a look at that at some stage.

Clause passed.

Clauses 16 and 17 passed.

Clause 18.

Ms REDMOND: I will ask just a general question to the Attorney and perhaps it could be attended to between the houses. The Attorney, although he was not here for some of it, would be aware that I read into the record, with the assistance of the member for Morialta, a very extensive letter, which was not from Geoffrey Adam but from a dozen conveyancers—in fact, 14, I think. There were 12 who acceded to what was said by the original conveyancer and the whole lot was sent to me by yet another conveyancer, and they were 14 relatively well-known and large firms who raised a series of issues. I would appreciate it—I do not want to hold the house unnecessarily—if the Attorney could undertake to address back to that conveyancer the specific issues raised in that letter so that we do not have to spend time going through that letter again now and have me ask all of those questions again.

The Hon. J.R. RAU: I find the proposition advanced by the member for Heysen irresistible.

Clause passed.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Housing and Urban Development, Minister for Industrial Relations, Minister for Child Protection Reform) (17:15): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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