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House of Assembly - Fifty-Third Parliament, Second Session (53-2)
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Real Property (Electronic Conveyancing) Amendment Bill

Introduction and First Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Industrial Relations, Minister for Child Protection Reform, Minister for the Public Sector, Minister for Consumer and Business Services, Minister for the City of Adelaide) (12:08): Obtained leave and introduced a bill for an act to amend the Real Property Act 1886, and to make related amendments to various acts. Read a first time.

Second Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Industrial Relations, Minister for Child Protection Reform, Minister for the Public Sector, Minister for Consumer and Business Services, Minister for the City of Adelaide) (12:08): I move:

That this bill be now read a second time.

The National Electronic Conveyancing is a Council of Australian Governments reform. It is part of the National Partnership Agreement for a Seamless National Economy to which South Australia is a party. A comprehensive business case for National Electronic Conveyancing undertaken in 2010 indicated that it is likely—

Ms Chapman interjecting:

The DEPUTY SPEAKER: Order!

The Hon. J.R. RAU: It is likely to generate national gross savings of up to $250 million per annum, largely for the banking industry and entities involved in conveyancing. South Australia's industry share of savings to the conveyancing industry would be approximately $10 million per annum, which could be equated to this initiative's value to the community in reducing red tape. South Australia's participation in NEC will markedly reduce current administrative burdens and costs associated with time and resources currently expended on physical settlements and processing of paper-based land transactions. I seek leave to insert the remainder of the second reading explanation in Hansard without my reading it.

Leave granted.

It is anticipated that NEC will:

Reduce costs and delays associated with conveying and settling land transactions

Increase the accuracy of transactional data lodged with Land Registries and hence reduce the costs of corrections

Reduce the complexities and costs of dealing across eight different jurisdictions.

The legal framework for NEC to be introduced in each State and the Northern Territory comprises the Electronic Conveyancing National Law plus Model Participation Rules (MPRs) and Model Operating Requirements (MORs), which are being developed by the Australian Registrars' National Electronic Conveyancing Council under the National Law.

The Electronic Conveyancing National Law (South Australia) Act 2013, which enacts the Electronic Conveyancing National Law in South Australia commenced on 21 January 2016. This Act provides a common regulatory framework to enable documents in an electronic form to be lodged under the Torrens land Title legislation in each State and Territory and will become operational in South Australia with the implementation of NEC.

The Real Property (Priority Notices and Other Measures) Amendment Act 2015 introduced the first stage amendments required to support introduction of NEC to the Real Property Act 1886 and commenced on 29 April 2015. These amendments included the introduction of an express statutory power to require parties to conveyancing transactions to verify their identity. Secondly, it introduced a new instrument called a Priority Notice, which allows parties to protect the priority of instruments prior to their lodgement.

The Real Property (Electronic Conveyancing) Amendment Bill 2016 (the Bill) will make the remaining changes required for South Australia to participate in NEC.

This Bill aligns the requirements for paper conveyancing with the new provisions for electronic transactions to facilitate a smooth transition between the two lodgement mediums and avoid the complexity and costs of dealing with two separate systems.

In particular, the Bill introduces the following amendments:

Certifications

The Bill broadens the current certification requirements to align with the certifications required for electronic conveyancing. The additional certifications will provide greater certainty that conveyancers, legal practitioners and mortgagees have complied with their statutory obligations, including the requirement to verify the identity of their client (or the mortgagor in the case of the mortgagee).

Certifications will be required to be provided in relation to:

compliance with relevant legislation;

compliance with the requirements of verification of identity and the execution of an instrument;

retention of documents related to the certification of the instrument;

compliance with any other requirements prescribed by legislation.

If a provision under the Act currently requires execution by all parties, then all parties will be required to provide certifications. In the case of a transfer of land, certification would be required from the transferor and transferee.

The Registrar-General will have the power to exempt parties or instruments from certification requirements under the Act. For example, a self-represented party would be exempt from making the full suite of certifications, particularly in relation to their person.

Client Authorisation

A Client Authorisation is a document by which a party to a conveyancing transaction authorises a legal practitioner or registered conveyancer to execute and lodge instruments on that party's behalf.

The Bill introduces new provision in the Act making it an offence for a legal practitioner or registered conveyancer to execute or lodge an instrument on behalf of another person, other than in accordance with the terms of a properly completed Client Authorisation.

In electronic conveyancing, the transacting parties will generally not have direct access to the electronic conveyancing system themselves. Each party will therefore need to provide a Client Authorisation to a legal practitioner or registered conveyancer who does have access to the electronic conveyancing system, authorising that legal practitioner or registered conveyancer to execute and lodge instruments on their behalf.

Once electronic conveyancing has commenced, a registered conveyancer or legal practitioner may not initially know if a particular transaction is to progress in paper or electronically. Alternatively, a transaction may be intended to proceed electronically but for some reason need to revert to paper.

The Bill aligns the paper and electronic conveyancing requirements to facilitate a smooth transition between the two lodgement mediums and avoid the complexity and costs of dealing with two separate systems.

Therefore, the same Client Authorisation form will be used for both paper and electronic transactions.

A Client Authorisation must be signed by the client or clients and the legal practitioner or registered conveyancer, or their agent. A properly completed Client Authorisation will have effect according to its terms as an authorisation to execute and lodge the specified instruments on behalf of the client. The conveyancer or legal practitioner will also need to take reasonable steps to establish that the client is entitled to enter into the conveyancing transaction identified in the Client Authorisation form. Reasonable steps could include inspection of some form of proof that the client's identity is connected to the subject land.

Instruments that must currently be executed and witnessed will require a Client Authorisation form.

The use of a Client Authorisation for caveats and Priority Notices will be optional and the following instruments will be exempt from the requirement for a Client Authorisation:

applications for title by possession to land;

applications for land division, applications for amalgamation of titles;

applications under the Community Titles Act 1996 and Strata Titles Act 1988.

The Bill also gives the Registrar-General the power to exempt parties or other instruments from the requirement to obtain a Client Authorisation, for example, where documents require a personal declaration (ie. application under Part 7A of the Act – Title by Possession).

Mortgages

In electronic conveyancing, the purchaser will not usually have a representative acting for them in their capacity as mortgagor; their legal practitioner or registered conveyancer acts for them in their capacity as transferee. Their representative will therefore not execute the mortgage on their behalf.

As such, the Bill introduces amendments which allow for a mortgage to be lodged without the mortgagor's execution where the mortgagee is an Authorised Deposit-Taking Institution (ADI) (e.g. a bank) or where the mortgagee is represented by a legal practitioner or conveyancer. If this method of execution is used the mortgagee will need to hold a mortgage executed by the mortgagor on the same terms. A certification to this effect will need to be provided by the mortgagee or their legal practitioner or conveyancer. The same process may be used for a mortgage extension.

To provide uniformity between electronic and paper instruments, these execution methods will be applied to both lodgement mediums.

The Bill also gives the Registrar-General the discretion to allow other categories of mortgagees to use the above method of execution. For example a financier such as HomeStart Ltd, which is not an ADI, may wish to seek approval to utilise the above method of execution.

When a mortgage is transferred the transferee must take reasonable steps to verify that the transferor complied with the verification of identity and verification of authority obligations.

If the person by or on whose behalf the mortgage is executed as mortgagor is not the registered proprietor of the land and in the Registrar-General's opinion, the mortgagee:

failed to comply with the verification of identity and verification of authority obligations; or

cannot produce the mortgage on the same terms executed by the mortgagor,

the Registrar-General may cancel the mortgage.

If the person by or on whose behalf the mortgage is executed as mortgagor is not the registered proprietor and the mortgagee failed to comply with verification of identity and verification of authority obligations the mortgagee's interest in the land is not indefeasible.

Removal of Duplicate Certificates of Title and other duplicate Instruments

The Bill removes the requirement for the Registrar-General to issue, and for registered proprietors to produce, duplicate certificates of title and tenants' copies of Crown leases. Reference to duplicate certificates of title and tenants' copies of Crown leases will also be removed from all State legislation.

The current practice of issuing a paper duplicate certificate of title or tenant's copy of a Crown lease, and producing it to the Registrar-General for each transaction, is incompatible with an electronic form of conveyancing.

Duplicate certificates of title and tenants' copies of Crown leases have historically played the following roles:

authentication: the duplicate certificate of title or tenant's copy of Crown lease is used as a means of identifying the relinquishing party in a transaction;

evidence of entitlement: possession of the duplicate certificate of title or tenant's copy of Crown lease is used as evidence of a right to deal with the land;

passing of interest: passing control of the duplicate certificate of title or tenant's copy of Crown lease from one party to another at the time of settlement (as a form of baton) protects the interest of the acquiring party between settlement and registration by ensuring that another dealing transferring that estate or interest does not gain priority (and also prevents multiple sales of the land);

confirmation of registration: the issue of a duplicate certificate of title or tenant's copy of Crown lease acts as confirmation of registration of the conveyancing instrument.

However, the requirement to produce a duplicate certificate of title or tenant's copy of Crown lease in conveyancing transactions has not entirely prevented fraud. Attempts to forge duplicate certificates of title have been detected by the Registrar-General. In other jurisdictions, forgers have successfully undertaken fraudulent transactions. Additionally, fraudulent transactions have been entered into by parties who have dishonestly obtained or improperly used genuine duplicate certificates of title.

Whilst possession of the duplicate certificate of title or tenant's copy of a Crown lease has been treated as evidence of ownership - and hence the right to deal with the land - it does not prove that the person transacting with the property is the person named in the Register as the registered proprietor and is entitled to deal with the land. Use of the duplicate certificate of title or tenant's copy of Crown lease to identify the transacting party, and as evidence of their right to deal with the land, is therefore inappropriate.

To combat this, the Bill introduces requirements for parties to a conveyancing transaction to have their identity and their right to deal with the land formally verified.

Where they are used, Priority Notices also prevent the registration of inconsistent dealings with the land and will therefore replace the 'baton' role of duplicate certificates of title and tenants' copies of Crown leases.

A subscription service known as Title Watch will also be introduced with the removal of duplicate certificate of title and tenant's copy of Crown lease. Title Watch is an alert service which will notify the subscriber via email or SMS that activity has been detected on the nominated Title. Items which trigger notification include, but are not limited to:

order of a Property Interest Report or Form 1;

lodgement of a Priority Notice;

lodgement of a dealing (e.g. transfer, mortgage etc.).

Verification of Authority

The Bill introduces an obligation on practitioners not only to verify the identity of their clients but to verify the client's authority to enter into the transaction.

Both verification of identity and verification of authority – which is the right to deal with an interest in land - are important steps in preventing fraud. The Bill introduces amendments which require conveyancers, legal practitioners and mortgagees to take reasonable steps to identify their clients and ensure that they are in fact the registered proprietor of the land or otherwise entitled to deal with the land.

Such requirements protect the interests of innocent registered proprietors, who might otherwise suffer a loss due to fraudulent dealings (for example a mortgage) registered on the certificate of title for their land. Likewise, verification of authority protects the publicly funded Real Property Assurance Fund from compensation claims resulting from fraudulent dealings with the land.

Self-represented parties (other than mortgagors) will also need to provide a certification that they have the authority to enter into the transaction.

Document Retention

Associated regulations will be made requiring supporting documents to be retained for a specified period.

Caveats

The Real Property Act will also been amended to expressly allow a registered proprietor to caveat their own property. This has been introduced following a number of applications received by registered proprietors wishing to caveat their property out of concern regarding potential fraudulent activity.

In order to clarify the existing policy position held by the Registrar-General, a provision to make it clear that the Registrar-General may enter a caveat when it is in the public interest to do so has also been included.

The amendments will also make it clear that the Registrar-General may prescribe instruments which can be registered or recorded in the face of a caveat (unless the caveat specifically forbids the registration or recording of that particular instrument). The instruments that will be prescribed will reflect the existing position.

For national consistency and to align paper and electronic processes, the encumbrance panel is being removed from the Lands Titles Office forms as instruments are subject to prior registered interests in any case. Due to the removal of the encumbrance panel from instrument forms, instruments lodged after a permissive caveat will automatically be subject to the caveator's claim. The subsequent instrument need not be expressed to be subject to the caveator's claim.

Offences

New offences are created for fraudulently using a digital signature, fraudulently altering a Client Authorisation, executing an instrument on behalf of another person without a properly completed Client Authorisation and false certification.

A defence of honest mistake, will be available in relation to the offence of falsely providing a certification.

The same defence is available in relation to the offence of executing an instrument on behalf of another person without a properly completed Client Authorisation.

Assurance Fund

The Real Property Act Assurance Fund was established to compensate persons deprived of land, or an interest in land where they have suffered a loss, for example as a consequence of fraud or by any error, omission or mistake by the Registrar-General or his officers. The Assurance Fund is directly linked to the pivotal principle of the Torrens system which is to provide a Government guaranteed Title.

The Bill amends the Assurance Fund provisions to provide clarification in relation to the meaning of 'market value' for compensation and of the Registrar-General's right to payment for costs incurred in relation to the claim.

For the purposes of determining compensation, value is to be market value as at the date on which the claimant institutes proceedings for compensation.

The Registrar-General may use money from the Assurance Fund to pay the costs incurred by the Registrar-General in connection with a claim.

These amendments have been included to provide clarity and direction on existing provisions.

Terminology

Various amendments are included to make the Act technologically neutral. In particular, the definition of 'dealing' has been deleted to ensure consistent wording throughout the Act. Likewise, the terms 'registered' and 'recorded' have been used throughout the legislation in relation to instruments. The term 'registered' applies to traditional estates or interests in land such as transfers and mortgages. The term 'recorded' applies to other estates or interests such as Land Management Agreements.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Real Property Act 1886

4—Amendment of section 3—Interpretation

This clause amends the definitions of several terms in the principal Act and inserts new definitions to support provisions in the measure. The clause also updates archaic and obsolete terms consistent with the statute law revision process undertaken in the measure.

5—Repeal of sections 14 and 15

The clause removes references to the Acting Registrar-General and Acting Deputy Registrar-General and the requirement for the Governor to appoint an employee of the Public Service to these positions.

6—Amendment of section 21—Seal of office

The clause removes a reference to the terms 'inscribed' and 'imprinted' in relation to the seal of office of the Registrar-General, to allow for the seal of office to be issued and appear in an electronic form. The clause also makes amendments consistent with the statute law revision process undertaken in the measure.

7—Amendment of section 39—Caveat against bringing land under Act

The clause makes an amendment to provide that caveats are to be lodged in the Lands Titles Registration Office, and not with the Registrar-General, consistent with other references in the Act.

8—Amendment of section 44—Proceedings under caveat

This clause makes an amendment to provide that caveats are to be lodged in the Lands Titles Registration Office and not with the Registrar-General consistent with other references in the Act.

9—Amendment of section 45—Lapse of caveat

This clause makes an amendment consequential to the amendment in clause 8 and also makes amendments consistent with the statute law revision process undertaken in the measure.

10—Amendment of section 49—Folios in Register Book

This clause makes an amendment to standardise the references to certificate of title in the Act.

11—Amendment of section 51B—Registration of title electronically etc

This clause makes an amendment to standardise references in the Act to a record being made in the Register Book or on a certificate of title.

12—Substitution of section 51C

This clause substitutes section 51C as follows:

51C—Issuing certificates of title

The proposed section updates the provisions in the current section 51C by standardising references to certificates of title, and making records on a certificate of title.

13—Substitution of section 52

The clause substitutes section 52 as follows:

52—Endorsement of record of registration

The proposed section provides that on registering an instrument the Registrar-General must make a record of the date and time of registration and the record must be accepted in legal proceedings as conclusive evidence of the date and time of registration.

14—Amendment of section 53—Retention of records

This clause makes amendments standardising references in the Act to information being registered or recorded by the Registrar-General.

15—Substitution of sections 54 and 55

This clause substitutes sections 54 and 55 as follows:

54—Form of instruments

The proposed section incorporates the provisions in the current section 54, standardises references to information being registered or recorded by the Registrar-General and also updates language consistent with the statute law revision process undertaken in the measure.

55—Non-compliant documents may be registered or recorded

The proposed section provides that the Registrar-General may register or record a document that is not in the appropriate form, or does not comply with a requirement under the Act (including where the document is not signed or executed in a manner required under the Act), despite the fact that the document does not comply with that form or requirement, if satisfied that the document substantially complies with the form or requirements of the Act and that loss or inconvenience would result if the document were not registered or recorded.

16—Substitution of section 56

The clause substitutes section 56 as follows:

56—Priority of instruments

The proposed section re-writes current section 56 incorporating standardised references to information being registered or recorded by the Registrar-General, and updating language consistent with the statute law revision process undertaken in the measure.

17—Amendment of section 57—Effect of registration or recording of instruments

This clause deletes a reference to signing an instrument to allow for instruments that may be executed in electronic form.

18—Repeal of section 58

The clause repeals an obsolete section.

19—Amendment of section 59—Provision for registration in case of death of person

Subclause (1) makes amendments consistent with the statute law revision process undertaken in the measure. Subclause (2) makes amendments to provide for the execution of documents in paper and electronic form. Subclause (3) inserts a new subsection (2) to provide for the validity of an instrument executed on behalf of a person pursuant to a client authorisation after the person's death.

20—Amendment of section 64—Power of court to direct cancellation of certificate or entry

This clause amends the section to standardise references to records and certificates of title in the Act.

21—Amendment of section 65—Search allowed

This clause provides that if an instrument is lodged electronically, the Registrar-General may determine that only the instrument as registered is to be accessed in a search of records in the Lands Titles Registration Office.

22—Amendment of section 67—Instruments not effectual until registration

This amendment is consequential on the proposed new definition of instrument and limits the operation of the section to instruments registrable under the Act.

23—Repeal of section 68

This clause repeals an obsolete section.

24—Amendment of section 69—Title of registered proprietor indefeasible

Subclauses (1) to (6) amend the section to standardise references to time and certificates of title in the Act, and update language consistent with the statute law revision process undertaken in the measure. Subclause (7) inserts a new paragraph providing that if a mortgagee fails to comply with verification of identity requirements or verification of authority guidelines, the mortgagee's interest under the mortgage is not indefeasible.

25—Amendment of section 71—Saving of certain rights and powers

The clause amends the section to remove references to dealings with the land.

26—Amendment of section 73—Certificate of title

This clause makes an amendment to the section to standardise references to certificates of title in the principal Act.

27—Substitution of section 80B

This clause substitutes section 80B as follows:

80B—Application requirements

The proposed section provides that an application under section 80A must be in the appropriate form, and updates language in existing section 80B consistent with the statute law revision process undertaken in the measure.

28—Amendment of section 80E—Notice of application

The clause makes an amendment to provide for a notice to be in the appropriate form and another amendment consistent with the statute law revision process undertaken in the measure.

29—Amendment of section 80H—Cancellation of instruments

This clause makes an amendment to the section to standardise references to certificates of title in the Act.

30—Amendment of section 88—Entry as to easement to be made on certificates of title

This clause makes an amendment to the section to standardise references to certificates of title in the Act and another amendment consistent with the statute law revision process undertaken in the measure.

31—Amendment of section 90A—Application of sections 90B, 90C, 90D, 90E and 90F

This clause makes an amendment to standardise references to certificates of title in the Act.

32—Amendment of section 93—Execution and registration of Crown lease

This clause makes a technical amendment.

33—Substitution of section 96

This clause substitutes section 96 as follows:

96—Transfers

The proposed section incorporates the provisions of current sections 96 and 96A, amended consistently with the statute law revision process undertaken in the measure. In addition, the proposed section provides that both the transferor and the transferee must execute a transfer.

34—Repeal of section 96A

This amendment is consequential on the amendment in clause 33.

35—Amendment of section 97—Transferee of land subject to mortgage or encumbrance to indemnify transferor

This amendment is consequential on the amendment in clause 33.

36—Repeal of sections 98 to 100

This clause repeals obsolete sections.

37—Amendment of section 107—Transfer on sale under writ, warrant, decree or order

This clause makes an amendment to standardise references to registration in the Act.

38—Repeal of sections 112 to 115

This clause repeals obsolete sections.

39—Amendment of section 116—Leasing of land

The clause amends the section to require both the registered proprietor and the prospective lessee to execute a lease.

40—Amendment of section 119—Lease for 1 year need not be registered

This clause removes the reference to dealing with land, inserts references to registering and recording instruments and makes amendments consistent with the statute law revision process undertaken in the measure.

41—Amendment of section 120—Lease may be surrendered by separate instrument

The clause deletes a reference to 'signed' and replaces it with a reference to 'executed' to allow for instruments that may be executed in electronic form.

42—Substitution of section 121

This clause substitutes section 121 as follows:

121—Registrar-General may record surrender

The proposed section provides power for the Registrar-General to record a surrender of a lease in the Register Book in the circumstances outlined in the section.

43—Substitution of section 128

This clause substitutes section 128 as follows:

128—Mortgage of land

The proposed section provides for the form and requirements of a mortgage to be executed if land is to be charged or made security in favour of a person, matters of which the Registrar-General must be satisfied before registering a mortgage and the requirements that parties to the mortgage must satisfy before a mortgage can be lodged for registration. Offences under the proposed section have a maximum penalty of $5,000.

128A—Obligations of mortgagee

Proposed subsection (1) makes it an offence for a person entering into a mortgage as mortgagee to fail to first verify the authority of the intended mortgagor to enter into the mortgage in accordance with the verification of authority guidelines.

Proposed subsection (2) makes it an offence for a mortgagee to fail to retain a copy of a document used to fulfill his or her obligations under subsection (1) for the period prescribed by the regulations. The offences in the proposed section attract a maximum penalty of $10,000 or imprisonment for 2 years.

128B—Encumbrance of land

The proposed section re-enacts the second part of current section 128 to provide that if land is to be charged with, or made security for, the payment of an annuity, rent-charge or sum of money in favour of a person, an encumbrance in the appropriate form must be executed by the registered proprietor and the person. The section only applies to land intended to be charged or made security under the principal Act by the registration of an encumbrance.

44—Amendment of section 129—Contents of mortgage or encumbrance

This clause makes amendments consequential on amendments in clause 43, and makes amendments consistent with the statute law revision process undertaken in the measure.

45—Amendment of section 129A—Standard terms and conditions of mortgage or encumbrance

The clause amends the section to provide that documents are to be filed in the Lands Titles Registration Office and not with the Registrar-General.

46—Amendment of section 143—Discharge of mortgages and encumbrances

Subclause (1) makes an amendment consequential on the definition of appropriate form. Subclause (2) substitutes the term 'signed' for 'executed' to allow for instruments that may be executed in electronic form. Subclause (3) deletes an obsolete provision.

47—Insertion of section 147

This clause inserts a new section as follows:

147—Cancellation of registration of mortgage by Registrar-General

The proposed section sets out the circumstances in which the Registrar-General may cancel the registration of a mortgage.

48—Insertion of section 152A

This clause inserts a new section as follows:

152A—Obligation of transferee if mortgage transferred

Proposed subsection (1) provides that a person must not execute a transfer of a mortgage, as transferee, without first taking reasonable steps to establish that the transferor complied with any obligation imposed under the Act on the transferor, as mortgagee, to verify the mortgagor's identity or authority to enter into the mortgage.

Proposed subsection (2) provides that a transferee must retain a copy of any document used for the purpose of fulfilling his or her obligations under proposed subsection (1) for the period prescribed by the regulations. The offences under the proposed section have a maximum penalty of $10,000 or imprisonment for 2 years.

49—Amendment of section 153—Renewal or extension of mortgage etc

This clause amends the section to provide that an instrument must be lodged in the Lands Titles Registration Office and not with the Registrar-General, consistent with other references in the Act.

50—Insertion of section 153A and 153B

This clause inserts new sections as follows:

153A—Requirements for renewal or extension of mortgage

The proposed section sets out the requirements for the renewal or extension of a mortgage.

153B—Obligations of mortgagee

The proposed section provides that a mortgagee must not execute an instrument renewing or extending the mortgage without first verifying, in accordance with verification of authority guidelines, the mortgagor's authority to enter into the transaction for the renewal or extension of the mortgage. The mortgagee must retain a copy of any document used for the purposes of fulfilling any such obligations for the period prescribed by the regulations, with a maximum penalty of $10,000 or imprisonment for 2 years.

51—Repeal of section 154

This clause repeals section 154 which is obsolete as a consequence of the new definition of instrument as inserted in the measure.

52—Amendment of section 154B—Effect of priority notice

This clause provides that the Registrar-General may give effect to an application under the Act by a surviving joint proprietor to have the death of a joint proprietor recorded in the Register Book even if a priority notice is in force in relation to the relevant land.

53—Substitution of section 156

This clause substitutes section 156 as follows:

156—Deposit of duplicate or attested copy

The proposed section updates current section 156—

by substituting references to depositing a duplicate or attested copy of a power of attorney with the Registrar-General with a reference to the Lands Titles Registration Office; and

to include a reference to noting the date and time of depositing the duplicate or attested copy; and

consistent with the statute law revision process undertaken in the measure.

54—Amendment of section 157—Revocation of power of attorney

Subclause (1) amends the section to provide that a revocation of a power of attorney must be signed by the grantor. The amendments in subclause (2) provide that the date and time the revocation is deposited in the Lands Titles Registration Office must be noted on the copy. Subclause (3) makes amendments consistent with the statute law revision process undertaken in the measure.

55—Substitution of section 163

This clause substitutes section 163 as follows:

163—Insertion of the words 'with no survivorship' in instruments

The proposed section incorporates the provisions of existing section 163 but updates a number of references to allow recording of instruments and the entering of words in electronic form, as well as updating the provision consistent with the statute law revision process undertaken in the measure.

56—Amendment of section 164—Trustees may authorise insertion of 'with no survivorship'

This clause inserts into the section references to executing the appropriate form and recording on a certificate of title to allow for execution and recording in electronic form.

57—Amendment of section 165—Effect of record

This clause makes amendments to standardise the references to recording in the Act.

58—Amendment of section 168—Survivors may perform duties or transfer to new trustees

This clause amends a reference to the surviving and remaining trustee.

59—Amendment of section 169—Disclaimers

The clause contains amendments consequential on the proposed definition of instrument, as a disclaimer is a document that does not fall within the proposed definition. The clause also makes a number of amendments consistent with the statute law revision process undertaken in the measure.

60—Amendment of section 171—Transmission to be recorded in Register Book

The clause amends the section to standardise the references to making a record in the Act, and include a reference to executing an application in the appropriate form, to allow for an application which may be in electronic form.

61—Amendment of section 173—Bankruptcy or assignment of lessee

Subclause (1) amends the section to standardise the references to making a record throughout the Act. Subclause (2) inserts a new subsection (2) to provide that a lessor, mortgagee or encumbrancee must retain a copy of any document used for the purpose of fulfilling his or her obligations under subsection (1) for the period prescribed by the regulations, with a maximum penalty of $10,000 or imprisonment for 2 years for non-compliance with the subsection.

62—Amendment of section 191—Caveats

The clause makes a number of amendments to section 191 including:

outlining the purpose of a caveat, namely, to prohibit absolutely the registration or recording of any instrument dealing with the land, or to provide that the registration or recording of an instrument dealing with the land may only occur subject to the claim of the caveator, and provided that, if any conditions are expressed in the caveat, the instrument complies with those conditions;

inserting a provision providing that if a caveator lodges a caveat providing that the registration or recording of an instrument dealing with land will be subject to the claim of the caveator, any instrument dealing with that land registered or recorded after the lodgement of the caveat will be taken to be registered or recorded subject to that claim;

standardising references to the execution of caveats, and the registering and recording of caveats and instruments affecting land consistent with the use of these terms elsewhere in the measure;

setting out the circumstances in which the Registrar-General may, after a caveat has been lodged, register or record another caveat or instrument or an instrument of a kind prescribed by the regulations;

clarifying that a registered proprietor of land may lodge a caveat in respect of land for which he or she is the registered proprietor;

amendments consistent with the statutes law revision process undertaken in the measure.

63—Insertion of sections 210A and 210B

The clause inserts new sections as follows:

210A—Value of land determined by market value

The proposed section provides that in determining the compensation payable from the Assurance Fund for any deprivation or loss under Part 18, the value of the land must be determined according to the market value of the land on the day on which the claimant institutes proceedings against the person or the Registrar-General.

210B—Registrar-General may use Fund money

The proposed section provides that money in the Assurance Fund may be applied for the purpose of meeting any expenses incurred by the Registrar-General in connection with any claim for compensation from the Assurance Fund.

64—Amendment of section 220—Powers of Registrar-General

The clause makes a number of amendments to standardise the references to registering or recording in the Act, as well as amendments consistent with the statutes law revision process undertaken in the measure. The clause also inserts a new paragraph 220(g)(iv) to give the Registrar-General power to enter caveats prohibiting the registration or recording of an instrument if the Registrar-General considers it is in the public interest to do so.

65—Amendment of section 221—Reviews

This clause inserts a new subsection (1a) providing that if a person is dissatisfied with a decision of the Registrar-General to cancel the registration of a mortgage under section 147, the person may seek a review of the decision by the Tribunal.

66—Amendment of section 223D—Caveats

The clause inserts a reference to lodging a caveat in the Lands Titles Registration Office instead of with the Registrar-General, consistent with other references in the Act.

67—Amendment of section 223L—Operation of corrections

The clause amends the section to standardise references to 'recording' in the Act.

68—Amendment of 223LA—Interpretation

The clause inserts a new subsection (7) to provide that an application or instrument under Part 19AB may not be executed under a client authorisation.

69—Amendment of section 223LD—Application for division

This clause substitutes subsection (2) to provide that an application under the section must be in the appropriate form, signed by the applicant and accompanied by the prescribed fee.

70—Amendment of section 223LJ—Amalgamation

The clause substitutes section 223LJ(2)(a) to provide that an application for amalgamation must be in the appropriate form and signed by the applicant.

71—Amendment of section 228—Declarations

This clause adds registered conveyancers to the list of persons before whom a declaration under the Act may be made.

72—Substitution of section 229

This clause substitutes section 229 as follows:

229—Offences

The proposed section updates the offences in current section 229 to include references to documents and instruments, signing, certification and execution, so that the existing offences may apply to client authorisations and documents that may be in electronic form. The proposed section also makes amendments consistent with the statute law revision process undertaken in the measure.

73—Amendment of section 230—Perjury

This clause removes a reference to dealing with land, and standardises the penalties that apply to similar offences in Part 20.

74—Amendment of section 232—Certifying incorrect documents

This clause deletes the current offence in section 232(1) and substitutes 2 new offences and a defence. Proposed subsection (1) makes it an offence for a person to falsely provide a certification under section 273(1) of the principal Act with a maximum penalty of $5,000 or imprisonment for 1 year. It is a defence to this offence to prove that the defendant was not negligent and the act or omission constituting the offence was attributable to an honest mistake on the defendant's part. Proposed subsection (1b) makes it an offence for a person to falsely provide certification under section 273(1) knowing that the certification is false, with a maximum penalty of $10,000 or imprisonment for 2 years.

75—Amendment of section 232A—Offences relating to verification of identity requirements

This clause updates all penalty provisions in line with other similar offences in Part 20. It also inserts a new subsection (7) to clarify that a certification provided under section 273(1) of the Act is not a statement for the purposes of the offences in this section.

76—Insertion of section 232B

This clause inserts a new section:

232B—Offences relating to verification of authority

This section includes a number of offences relating to the requirement to verify a person's authority to enter into a transaction in accordance with the verification of authority guidelines and the participation rules. It is an offence for a person to falsely state that a person's authority to enter into a transaction has been verified in compliance with the verification of authority guidelines or the participation rules with a maximum penalty of $5,000 or imprisonment for 1 year. A higher penalty applies ($10,000 or imprisonment for 2 years) if the person makes the statement knowing that it is false. There are also offences relating to making false statements in connection with verifying a person's authority to enter into a transaction for the purposes of the verification of authority guidelines or the participation rules, production of false or misleading records and retention of documents or records.

77—Amendment of section 233—Other offences

The clause adds the following new offences to the section with a maximum penalty of $50,000 or imprisonment for 10 years to apply:

an offence if a person without lawful authority and knowing that no such authority exists intentionally alters or causes to be altered a client authorisation;

an offence if a person fraudulently uses, assists in fraudulently using or is privy to the fraudulent using of a digital signature within the meaning of the Electronic Conveyancing National Law (South Australia).

The clause also removes references to dealing in the section, makes an amendment consequential on the repeal of section 14 and makes a number of amendments consistent with the statute law revision process undertaken in the measure.

78—Insertion of Part 20A

This clause inserts a new Part as follows:

Part 20A—Client authorisation

240A—Client authorisation

The proposed section defines a client authorisation as—

a document that is a client authorisation for the purposes of the Electronic Conveyancing National Law (South Australia); or

a document in the appropriate form by which the client of a law practice, legal practitioner or registered conveyancer authorises the practice, practitioner or conveyancer to execute 1 or more instruments, or do 1 or more other things, on behalf of the client in connection with a specified transaction or for a specified period of time.

240B—Effect of client authorisation

The proposed section sets out the effect of a client authorisation completed under the proposed Part.

240C—Termination of client authorisation

The proposed section provides for the requirements for terminating a client authorisation.

240D—Instruments to be executed by natural persons

The proposed section sets out the requirements for an instrument to be executed under a client authorisation in the case of a law practice or a registered conveyancer that is a body corporate.

240E—Client authorisation may be given by Crown or statutory corporation

The proposed section provides that the Crown (including an instrumentality of the Crown) or a statutory corporation may provide for a representative to execute instruments on its behalf by completing a client authorisation (irrespective of whether it has the capacity to delegate its powers).

240F—Legal practitioner and registered conveyancer must obtain authorisation

Proposed subsection (1) makes it an offence with a maximum penalty of imprisonment for 2 years for a legal practitioner or registered conveyancer to execute an instrument for the purpose of the principal Act or the Electronic Conveyancing National Law (South Australia) on behalf of a party to the instrument other than in accordance with a properly completed client authorisation, or without first complying with verification of identity requirements and verification of authority guidelines as set out in the proposed subsection.

Proposed subsection (2) sets out the circumstances to which an offence under proposed subsection (1) does not apply. Proposed subsection (3) provides a defence for the offence in proposed subsection (1).

240G—Retention of client authorisation

The proposed section provides that a client authorisation must be retained by the legal practitioner or conveyancer for the period prescribed by the regulations with a maximum penalty of imprisonment for 2 years.

79—Amendment of section 246—Unregistered instruments to confer claim to registration

The clause amends section 246 to include a reference to an instrument that may be executed other than by signing, to allow for instruments in electronic form. The clause makes other amendments consistent with the statute law revision process undertaken in the measure.

80—Amendment of section 247—Informal documents may be registered

The clause amends the section to include reference to a document being signed or executed to allow for instruments in electronic form.

81—Amendment of section 255—Confused boundaries

The clause amends the section to include and standardise references in the Act to registering or recording instruments on the certificate of title.

82—Amendment of section 267—Witnessing of instruments

The clause makes an amendment to delete reference to execution of an instrument requiring witnessing and substitute a requirement for witnessing in the case of signing an instrument.

83—Amendment of section 268—Improper witnessing

These amendments are consequential on amendments in clause 82. The penalty for the offence is increased in line with other similar offences.

84—Amendment of section 270—Execution of instrument by corporation

This amendment provides that a corporation may execute an instrument in any manner permitted by law.

85—Amendment of section 273—Authority to register

The clause makes a number of amendments to ensure consistency between certification requirements under the principal Act and the Electronic Conveyancing National Law (South Australia), and to enable certification by a person who has executed an instrument under a client authorisation.

86—Insertion of section 273AA

This clause inserts a new section:

273AA—Proof of authority of unrepresented parties to enter into transaction

Proposed subsection (1) provides that if a party to the instrument is not represented by a legal practitioner or registered conveyancer, the Registrar-General must not register or record an instrument in the Register Book or the Register of Crown Leases unless the party has satisfied the Registrar-General that he or she is authorised to enter into the transaction to which the instrument relates.

Proposed subsection (2) provides that such a party must retain a copy of any document used for the purpose of fulfilling his or her obligations under proposed subsection (1) for the period prescribed by the regulations, with a maximum penalty of $10,000 or imprisonment for 2 years.

Proposed subsection (3) inserts a definition for the purposes of the proposed section.

87—Amendment of section 273A—Verification of identity requirements

Subclause (1) provides that the identity of a party to an instrument or a person executing a document for the purposes of the Act (other than a legal practitioner or registered conveyancer acting under a client authorisation) must be verified in accordance with the prescribed verification of identity requirements. Subclause (2) removes the limitation of a period not exceeding 10 years from the specified requirements in subsection (4)(b) of the Act. Subclause (3) provides that in civil proceedings (other than review proceedings under the principal Act) where it is alleged that a person failed to comply with a requirement under the verification of identity requirements, that person bears the onus of proving his or her compliance with the requirement. The amendment in subclause (4) is consequential on the new definition of instrument in the measure, and the amendments in subclause (1).

88—Insertion of section 273B

This clause inserts a new section:

273B—Verification of authority guidelines

The proposed section provides the requirements for the issue of verification of authority guidelines.

89—Insertion of section 276A

This clause inserts a new section:

276A—Evidence of instruments lodged electronically

The proposed section provides evidentiary provisions for a document certified by the Registrar-General that reproduces the contents of an instrument lodged electronically under the Act or the Electronic Conveyancing National Law (South Australia).

90—Substitution of section 277

This clause substitutes section 277 as follows:

277—Regulations

The proposed section allows the Governor to make regulations under the Act.

Schedule 1—Related amendments

Part 1—Amendment of Legal Services Commission Act 1977

1—Amendment of section 18A—Legal assistance costs may be secured by charge on land

The clause makes a consequential amendment to the section to remove reference to an instrument being attested by a witness, as a result of changes implemented in the measure.

Part 2—Amendment of Registration of Deeds Act 1935

2—Amendment of section 6—Registrar-General of Deeds

The clause removes the requirement for the Registrar-General of Deeds to be appointed by the Governor, and provides that the Registrar-General under the Real Property Act 1886 is to be the Registrar-General of Deeds.

Part 3—Amendment of Stamp Duties Act 1923

3—Amendment of section 2—Interpretation

The clause inserts the following interpretative provisions into the Act:

if an instrument under the Real Property Act 1886 is executed by a legal practitioner or a registered conveyancer on behalf of a person under a client authorisation (within the meaning of that Act), the instrument will be taken for the purposes of the Act to have been executed by the person who provided the authorisation;

if a dutiable instrument to be registered or recorded under the Real Property Act 1886 is in electronic form, a requirement under the Act for such an instrument to be duly stamped will be taken to be satisfied if a stamp duty identification number (as defined) appears on the instrument.

Part 4—Amendment of Worker's Liens Act 1893

4—Amendment of section 10—Lien to be registered

This amendment makes amendments consequential on other amendments in the measure relating to forms, execution, signing and witnessing.

5—Amendment of section 12—Notice to be deemed caveat

This amendment is consequential on certain amendments in clause 62 of the measure.

Schedule 2—Related amendments—duplicate certificates of title

The amendments contained in the Schedule remove references to duplicate certificates of title from various Acts.

Schedule 3—Transitional provisions

1—Registrar-General and Deputy Registrar-General of Deeds

The clause provides for the continuation of the appointment of the current Registrar-General of Deeds and any Deputy Registrar-General of Deeds.

Debate adjourned on motion of Ms Chapman.

Mr Pederick interjecting:

The DEPUTY SPEAKER: Order!

The Hon. A. Koutsantonis interjecting:

The DEPUTY SPEAKER: Order!

Mr Pederick: Go for it.

The DEPUTY SPEAKER: Order! Looking at me; the Treasurer is looking at me and speaking to me.

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