western australia verification of identity legislation … australia verification of identity...

Western AustraliaVerification of Identity

legislation packA compilation of rules, requirements and other

resources for due diligence in Western Australia.

Contents

VOI reasonable steps flowchart

Western Australian VOI Practice

IDfy

LPLC Troubleshooting VOI

VOI FAQs

ARNECC Guidance notes

Click on the links below to navigate through the documents

Does the client have authority to instruct you?

For each conveyancing transaction you must take reasonable steps to verify that the client is a legal person and has the right to enter into the conveyancing transaction.

Does the client have capacity to give instructions?

Without capacity, a person is unable to enter into any contract, including a contract for the provision of legal services.

Have you taken reasonable steps to verify the

identity of the client?

You must take reasonable steps to verify client identity as per standards set out in the ARNECC Model Participation Rules.

Has your client declared the ID as true copies?

Get a client declaration confirming their identity.

Have you retained a copy of any documents which establish:

authority + identity?

Retain supporting documents as evidence.

Where you need to test capacity refer to guidelines issued by Law Society NSW.

The Verification of Identity Standard means the standard set out in Schedule 8 of the ARNECC

Participation Rules.

Conveyancing Rules for majority of states require a representative must take reasonable

steps to verify the identity of clients.

Are you conducting due diligence verifying your client?

Verification of identity legislation updates State Land Registry requirements across Australia are changing to ensure that lawyers and

conveyancers conduct due diligence to identify their clients. InfoTrack is leading the charge to help practitioners comply with regulations and be

confident they’re taking reasonable steps to verify

the identity of their clients.

The Western Australian Verification of Identity Practice (VOI practice) was introduced on 1 July 2012 and came into full effect on 2 January 2013 after a six-month transitional period.

The VOI practice requires conveyancers to verify the identity of a person transacting and their authority to deal with an interest in land. It was implemented to reduce the risk of land title fraud through identity theft.

The Verification of Identity Standard has two base requirements:

1. Identity document production – production of current, original identity documents from the categoriesin the VOI practice.

2. Visual verification of identity – a visual ‘face-to-face’ comparing the photograph on the current originalidentity documents with the person being identified.

In accordance with the VOI practice, a statement by a conveyancer, lawyer or mortgagee is required. The statement can be made:

• in the form of a statutory declaration

• on letterhead and lodged with the relevant document

• on a transfer of land form and a mortgage form that incorporates the VOI statement.

Western Australia Verification of Identity Practice

Useful links

Verification of identityLandgate verification of identity page

Land Titles Registration practice manual

Verification of Identity Practice flyer

Verification of identity for self-represented parties

VOI information session presentation

Electronic conveyancing Landgate electronic conveyancing page

WA Participation Rules Version 3.1

WA Operating Requirements Version 3.1

Registrar’s information session on e-conveyancing - presentation

Registrar’s information session on e-conveyancing - recording

Registrar’s information session on e-conveyancing - FAQs

Paperless conveyancing discussion paper

Eligible documents list

Electronic lodgement timeline

https://www0.landgate.wa.gov.au/titles-and-surveys/property-ownership/fraud-protection/verification-of-identity

https://www0.landgate.wa.gov.au/__data/assets/pdf_file/0005/11021/LTRPM.pdf

https://www0.landgate.wa.gov.au/docvault.nsf/web/PS_TR_VI/$file/VOIBRO.pdf

https://www0.landgate.wa.gov.au/titles-and-surveys/property-ownership/survey-services/self-represented-parties

https://www0.landgate.wa.gov.au/docvault.nsf/web-new/PS_TR_VI/$FILE/InfoSession.pdf

https://www0.landgate.wa.gov.au/for-individuals/legislation-and-reform/electronic-conveyancing

https://www0.landgate.wa.gov.au/__data/assets/pdf_file/0018/11763/Western-Australian-Participation-Rules-Version-3.1.pdf

https://www0.landgate.wa.gov.au/__data/assets/pdf_file/0019/11764/Western-Australian-Operating-Requirements-Version-3.1.pdf

https://www0.landgate.wa.gov.au/__data/assets/pdf_file/0020/19307/Registrars-Information-Session-on-e-conveyancing-presentation.pdf

https://www0.landgate.wa.gov.au/__data/assets/pdf_file/0020/19307/Registrars-Information-Session-on-e-conveyancing-presentation.pdf

https://www0.landgate.wa.gov.au/__data/assets/pdf_file/0019/19315/FAQ_Registrars-Information-Sessions.pdf

https://www0.landgate.wa.gov.au/__data/assets/pdf_file/0006/16449/Paperless-conveyancing-discussion-paper.pdf

https://www0.landgate.wa.gov.au/__data/assets/pdf_file/0016/16450/Eligible-documents-for-paperless-conveyancing.pdf

https://www0.landgate.wa.gov.au/about-us/publications-and-awards/bulletins-and-manuals/customer-information-bulletins/cib_2016/bulletin-no.-289-13-december-2016

Troubleshooting VOI

VOI – why, when, how | RACV Club | 2 March 2016 Page 1 of 8

Client unable to attend office to be identified

Consider registering to use Australia Post, ZipID, IDSecure and/or IDfy * InfoTrack.

Remember to check the documents received from an identification agent to ensure they

are legible and do not contain errors. For example, the documents are not complete

because a photo of the client was not provided by the identification agent.

Where any errors are discovered seek an explanation from the identification agent. In

some circumstances it may be necessary for the client to be identified for a second time.

Identity documents match up but the client has an alias. For

example, their name is Thomas but they are known to your office

as Tom.

Prepare a statutory declaration to be signed by the client stating their current correct

name and also listing the other name(s) they are known as. Keep this declaration on your

file.

See attached sample.

Discrepancies in client’s name as disclosed in the identity

documents

Ask the client for:

• an explanation as the reason may be cultural or they may have changed their name

by marriage

• documents to back up their explanation such as a marriage and/or change of name

certificate.

Where they cannot satisfactorily explain the difference you may need to request that they

apply to have the identity document(s) re*issued with the name difference corrected.

For example, their passport refers to John Smith and their drivers licence John B. Smith.

John should be told to obtain a new drivers licence which is consistent with the name on

their passport. Only once the amended document has been provided are you able to

verify their identity.

Requested by a lender / mortgagee to verify identity a

mortgagor pursuant to section 87A of the Transfer of Land Act

1958 (Vic) when providing a solicitor’s certificate

S.87A(1) relevantly provides that:

At the time of execution of a mortgage or a variation of mortgage, a mortgagee

must take reasonable steps to verify the authority and identity of a mortgagor …

Where the practitioner for the mortgagor undertakes an authority and identity check at

the request of a mortgagee it is arguable that they are acting as an agent for the

mortgagee. This would give rise to a conflict.

LPLC recommends that a practitioner who is asked to verify authority and identity of the

mortgagor notifies the mortgagee in writing that they are unable to so as this would mean


they are acting as agent for the mortgagee which gives rise to a conflict. The mortgagee

should be told to undertake its own verification.

Identity documents in another language

The documents will need to be translated. LPLC recommends using a translator

accredited by National Accreditation Authority for Translators and Interpreters Ltd (NAATI).

Unable to verify identity of client

This may occur for any number of reasons including:

• the client looks different to their photo

• the documents do not appear genuine

• the client has no identification documents

• the client is pretending to be someone else

According to the recent publication by Marsh Fraud and Scams – How to Protect Your

Business awareness of the threat of frauds and scams is the key to minimising risk.

Marsh also refers to criminals engaging in “social engineering’ or more commonly known

as “confidence tricks” to overcome risk controls. One example given is where a criminal

calls a law firm with some kind of urgent problem and requires immediate network access.

These criminals may appeal to vanity, authority and greed but more commonly simply rely

on people’s natural helpfulness.

How much should I charge to VOI a client?

Charge a fee which reflects the risk as well as covers the necessary steps and precautions.

For example, the process to identify a long standing client would probably be cheaper

comparted to a client who walks in off the street.


Example of fraud involving a practitioner

You have been acting for a foreign investor selling real estate in Melbourne. Settlement is

due 30 June, one of your busiest times in the office. On 29 June you are contacted by

someone claiming to be from the firm’s bank. This person tells you the client’s funds are at

risk of being stolen and that you should immediately call a number which they provide to

you and to follow the directions of the person you contact. You are told by this person

someone will contact you tomorrow about transferring the funds to a safe account.

Compare this scenario to a recent case in the UK (search BBC/ Legal career ‘hit by vishing

scam’) where criminals posed as bank staff and told a lawyer funds in her firm’s bank

account were at risk. The practitioner transferred the funds into a new account which

were quickly transferred by the fraudsters to other accounts and withdrawn.

If you are contacted by someone claiming to be from your bank and have caller ID keep

a written record of the number of the caller.

Ask the caller to give you their contact details.

Before doing as directed by the caller contact the branch of your bank where your

account was established and ask them whether they can verify the directions you have

been given.

If you receive an email which contains directions for transferring funds, even where the

email is from the client, always telephone the client to verify the information. For more

information see the LPLC blog Identify your client and ensure they are instructing you.

Where you are unable to verify the identity of a client the client may be attempting to

commit a fraud. You need to be strategic and careful when dealing with a client whose

identity is in doubt. Having a written office policy is one way of ensuring the situation is

handled properly.

Consider the following scenarios and our comments which may help you to develop an

office policy to deal with this situation.

First scenario

You have received via post original and/or copy identity documents from a client that you

doubt are genuine.

Check any Australian*issued identifying credentials such as birth certificates, driver

licences and passports using the Commonwealth Government’s Document Verification

Service (DVS). The DVS will verify whether the number of the identity document is valid or

invalid.

If the number of the identity document is invalid:

• you are not obliged to notify the client of your suspicions but may wish to notify the

client that you are unable to act for them

• consider the need to contact your local police station to inform them that you are in

possession of identity documents which you suspect may be false.

To assist you to in making a decision about whether to contact the police refer to the

attached four rulings issued by the Law Institute Ethics committee. In summary the LIV

Ethics committee view seems to be that a practitioner is not breaching the conduct

rules by notifying the police of their suspicions.


Where you decide to contact the police ask the police what they would like you to

do. They may require that you complete a fraud report form. This form and more

information can be found on Victoria Police’s Crime Prevention and Community

Safety>Fraud>Reporting fraud page.

• retain a copy of the documents. Where the client requires you to return any

documents you may do so unless told otherwise by the police.

Second scenario

• A new client attends your office and instructs you to act for them in the sale of a piece

of real estate. The client gives you the certificate of title and a discharge of mortgage.

• You send the client to an identity agent to verify their identity but the agent informs you

they were unable to as the client does not look like the person in the photo identity

documents.

• Shortly after receiving this call the client shows up at your office demanding you give

them back the certificate of title.

Don’t panic but be aware that a client may be upset. It may be that you have caught

them out and they are in a panic. Always be alert to the possibility that the client may

become violent. They may also demand that you give back any documents they have

given you.

Before confronting the client inform someone else in the office what has occurred

preferably a principal and/or office manager, and have someone accompany you when

you see the client.

Ask the client to provide you with their identity documents and explain that you need to

verify their identity to enable you to continue to act.

Where the client’s identity remains in doubt you are not obliged to return the title(s) to the

client.

If the client refuses to co*operate and/or demands the return of the title(s) ask the client to

leave your premises. If they refuse to go tell them they are trespassing and should leave

immediately or you will have no alternative than to contact the police.

See our comments above about contacting the police. You should also notify the Land

Registry.


Sample name declaration

Statutory declaration

Re: Verification of identity

I,

of

1. My name as shown on my ……………………….…[insert identity document, eg.

passport / birth certificate]

is ……………………………

2. I am also commonly known as ……………………………….……………………………….

4. My true and correct name is ……………………………….……………………………….

I acknowledge that this declaration is true and correct and I make it in the belief that a

person making a false declaration is liable to the penalties of perjury.

Declared at

on the ……………….day of ………………20…..

)

)

)………………………………………

)

Before me: ……………………………….……………………………….…………………………….

Witness to print full name, address and qualification:

……………………………….……………………………….…………………………….

……………………………….……………………………….…………………………….

……………………………….……………………………….…………………………….


Ethics rulings

Ruling Number: R4676

Category: Checking Identity * Release of documents

Area of Law: Legal practice management

Ruling Date: 18 Nov 2010

Publication Date: 4 May 2011

Background

A law firm is entitled to request any type of identification it wishes (within reason) to ensure

that the client authority to release documents is genuine. However, it is not necessary to

view 100 points of identification where the request comes from another legal practitioner.

Firm X sent to Firm Y an authority from its client to hand over documents belonging to her

and her late husband. Firm Y declined to hand over those documents until Firm X provided

100 points of identification for the client.

Firm X requested guidance from the Ethics Committee in relation to the identification

requirements required by Firm Y before releasing deeds from its strongroom. In addition,

Firm X asked whether it was necessary to provide 100 points of identification where the

requesting entity was a law practice holding professional indemnity insurance.

Firm Y advised that it had formulated a policy within the firm for dealing with requests for

deeds from its strongroom. Firm Y advised that simply relying on a law firm's letterhead was

no longer enough, given the increase in identity fraud. It had therefore researched

identification procedures used by other entities, such as banks, and adopted a similar 100

points of identity requirements.

Firm Y also sought guidance from the Ethics Committee, particularly in relation to the types

of identification requirements it should request when the following three scenarios arise:

• where the former client requests documents/deeds (and there is no lawyer involved);

• where the former client's request comes to the firm via the client's lawyer;

• where an agent of the former client (who is not legally represented) requests the

documents (for instance, on the death of the former client).

Ruling

In the opinion of the Ethics Committee and on the information presented the practitioner

should comply with the original written authority of the former client unless the practitioner

has reasonable grounds to doubt the authenticity of that authority.


Category: Privilege/confidentiality * Crime/fraud

Area of Law: Criminal

Ruling Date: 1 Mar 1996

Publication Date: 1 Oct 2004

Background

A legal firm requested the Ethics Committee to determine whether the Firm was required

to disclose the identity of their client to the Police. The Police suspected the client of

committing a criminal offence.


Ruling

In the opinion of the Ethics Committee and on the information provided:

1. That while the identity of the client is confidential, if ordered by a Court to disclose

the identity of the client, the Firm would be required to disclose the same.


Category: Privilege/confidentiality * Crime/fraud


Ruling Date: 1 Feb 2004

Publication Date: 1 Jun 2004

Background

A solicitor considered he might have information about a possible murder of a woman by

her husband several years ago. He sought a ruling on whether he could tell the police of

his suspicions. The solicitor had never acted for either the husband or wife although he

employed the wife at one time and acted as mediator in a commercial dispute involving

the husband.

Ruling

In the opinion of the Ethics Committee and on the information presented:

1. If any information was not obtained in the course of a retainer, the solicitor was not

governed by fiduciary duties of confidentiality or by r3 of the Professional Conduct and

Practice Rules 2003. The practitioner must make a decision based on the same ethical

principles governing all members of society, keeping in mind his additional obligation

not to bring the profession into disrepute.

2. In all the disclosed circumstances, the Ethics Committee recommends that the

practitioner should disclose any relevant information to the police.


Category: Trust account * Crime/fraud * Solicitor as witness


Ruling Date: 1 Mar 2004

Publication Date: 1 Jul 2004

Background

A practitioner may not be prevented from representing a client in one matter despite

being a potential witness in a separate matter. A firm received trust funds from an

incarcerated client whom they represented in his personal injury matter. The money came

from another prisoner who owed funds to the client. This appeared to be confirmed by

letters signed by the second inmate. The second inmate subsequently advised the firm by

telephone that the client had obtained the funds from him by deception. The second

inmate had expected the firm to provide the funds to his mother overseas. Funds

remained in the trust account pending separate criminal and professional standards

investigations. A warrant over the file was exercised and the firm was asked to provide a

statement to police.

The firm asked the Ethics Committee to advise:


1. whether it could continue to act in the personal injury matter and, if so,

2. whether that position changed if criminal charges were laid and the firm was

called to give evidence against their client.

Ruling

In the opinion of the Ethics Committee and on the information presented:

1. The Ethics Committee did not consider there was a conflict of interest in these

circumstances and accordingly has no issue with the firm continuing to act for the

client in his personal injury matter.

2. The Ethics Committee did not anticipate that this position would necessarily change in

the event of criminal charges being laid against the client and the firm’s being

required to give evidence, but the issue should be revisited in the light of the

circumstances at such time.

Contact details

Law Institute of Victoria |Ethics Committee of Law Institute of Victoria Ltd

Legal Ethics Manager | Phone: 03 9607 9336 |Email: [email protected]

Verification of Identity FAQs

What is a Subscriber?

A legal entity registered to use an ELNO to complete conveyancing transactions electronically, as or on behalf of, a Transacting Party.

Do I have to use an Identity Agent to have my client’s identity verified?

No, the requirement is to take reasonable steps to verify the identity of your client or mortgagor. How this is done is up to you, as long as the steps taken are reasonable in the circumstances. You can undertake the verification of identity yourself or it can be done by an agent (including an Identity Agent).

Who can undertake a VOI?

Anyone can use the Verification of Identity Standard. This is a business decision for you to make as it is your obligation to take reasonable steps to verify identity. How you undertake VOI is up to you, however for it to be deemed reasonable steps the VOI Standard must be properly carried out by one of the following categories of people: Subscriber; Mortgagee; or Identity Agent.

Must the Verification of Identity Standard be used to verify the identity of clients and mortgagors?

It is not a requirement to use the Verification of Identity Standard to verify the identity of clients and mortgagors. The requirement is for you to take reasonable steps to verify their client’s or mortgagor’s identity. What those steps are in each particular circumstance is for a you to decide, you can take your own reasonable steps or use the Verification of Identity Standard.

Do you need to get the VOI for both vendors and purchasers?

Yes, the requirement is for the you to take reasonable steps to verify the identity of your client and this applies to both vendor(s) and purchaser(s) – whichever party is your client.

What happens in the event of the contract being signed at the Real estate agent office and the contract is then returned to our office?You are still required to verify the identity of the signer.

Do VOI requirements apply to existing clients?

Yes. You need not re-verify your client if you have taken reasonable steps to verify their identity within the previous two years and ensured that you are dealing with the same person whose identity you have already verified. After two years, it is up to you to assess what is reasonable in the circumstances.

What should I do if I suspect the identity documents provided are not genuine or do not represent a reasonable likeness to the person being identified?

When doubt arises, or should reasonably have arisen in relation to a transaction and/or a client’s or mortgagor’s identity, you should seek further evidence or make further enquiries. If after having done so you are still not satisfied, then you should decline to act further in the transaction.

What are the requirements for retention of evidence supporting verification of identity?

Evidence must be retained by the conveyancer, lawyer or mortgagee for seven years from the date of lodgement. If a non-represented party is a party to a conveyancing transaction, that party will also be required to retain supporting evidence for seven years from the date of lodgement of the instrument they signed. If the Verification of Identity Standard was used, this evidence must demonstrate that the procedure for the standard was followed. If alternative reasonable steps were used to verify identity the evidence must show what these steps were.

What do I do for clients overseas?

Where a client is overseas, you need to decide what steps to take to verify the person’s identity having regard to the available services and options under the circumstances. One available option is to utilise the services of an Australian Embassy, High Commission or Consulate coupled with any necessary further steps in order for the Subscriber or mortgagee to be reasonably confident in the person’s identity. If your client has an Apple device registered with the Australian App Store you have the option to use IDfy for remote verification.

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1 ARNECC MPR Version 3 Guidance Note #1: Client Authorisation – Published September 2015

MODEL PARTICIPATION RULES GUIDANCE NOTE

CLIENT AUTHORISATION

1 INTRODUCTION

This guidance note aligns with Version 3 of the Model Participation Rules and explains:

what a Client Authorisation is;

why a Client Authorisation is required;

when a Client Authorisation is required; and

how a Client Authorisation is completed.

This guide does not constitute legal advice nor does it replace prudent

conveyancing practice. Nothing written in this guide overrides the Electronic

Conveyancing National Law, Participation Rules, any other relevant legislation or

Registrar’s Prescribed Requirements.

2 WHAT IS A CLIENT AUTHORISATION?

A Client Authorisation is a document that enables a party to a transaction (the client) to

authorise a conveyancer or lawyer to act on their behalf in that transaction. While the

Client Authorisation empowers a Subscriber to act for a client in a similar way to a power

of attorney, legislation specifically states that the Client Authorisation is NOT a power of

attorney. Accordingly a Client Authorisation does not need to comply with any legislative

requirements relating to powers of attorney or to be registered in those jurisdictions where

registration of powers of attorney is required.

While acting on behalf of the client under a Client Authorisation, the conveyancer or

lawyer can:

sign registry instruments or other documents;

present registry instruments or other documents for lodgment with the Land

Registry; and

authorise or complete any associated financial aspects of the transaction.

1


The Client Authorisation clearly sets out the details of the authorisation and the completed

form must be retained as supporting evidence of authority for the transaction.

3 WHY IS A CLIENT AUTHORISATION REQUIRED?

In electronic conveyancing a client will not be able to access the electronic lodgment

network to sign a registry instrument or document.

A Client Authorisation is required to give the client’s conveyancer or lawyer authority to

sign the registry instrument or document on the client’s behalf.

4 WHEN IS A CLIENT AUTHORISATION REQUIRED?

A Client Authorisation is required whenever a conveyancer or lawyer represents a client in

a transaction in an electronic lodgment network, except where the conveyancer or lawyer

is preparing and lodging a caveat or, in those jurisdictions that have them, a priority notice

or settlement notice.

For a caveat and a priority notice or settlement notice a Client Authorisation is optional as

the purpose of these documents is to provide notification of an interest. Whether a Client

Authorisation will be obtained or not is dependent on the circumstances of the individual

transaction.

For example, it may not be possible to obtain a Client Authorisation prior to processing a

Caveat. However, if it is a purchaser’s caveat it may be dealt with as part of the

transaction that is covered in a Client Authorisation.

5 HOW IS A CLIENT AUTHORISATION COMPLETED?

A Client Authorisation is completed by the client and the conveyancer or lawyer. Once

complete, it is signed by the client or their attorney or agent as a granting of that

authorisation.

The conveyancer or lawyer (or their agent) also needs to sign the form in order to certify

that reasonable steps were taken to ensure the form was signed by the client or by the

client’s attorney or agent. If the Client Authorisation is signed by the conveyancer or

lawyer’s agent, the conveyancer or lawyer does not also need to sign the Client

Authorisation.

Ideally, the verification of identity of the client would be completed at the time the client

signs the Client Authorisation. Refer to MPR Guidance Note #2: Verification of Identity.

However, there may be instances where these processes are not able to occur

simultaneously and in these instances the conveyancer or lawyer needs to take


reasonable steps to ensure that the Client Authorisation is being signed by their client or

by the client’s attorney or agent. This may be done by referencing the verification of

identity supporting documentation and ensuring it is the same person signing.

Authorisation can be given:

for a specific transaction or transactions, in which case the transactions should be

listed on the Client Authorisation form; or

as a standing authority, either until a specified date or until it is revoked; or

for a batch of transactions, in which case, the individual transactions in the batch

should be listed in an attached schedule.

A Client Authorisation smart form is available on the ARNECC website at

http://www.arnecc.gov.au/. This smart form has been created for ease of use and has the

same content as the Client Authorisation form in the Participation Rules.

A printable version of the form is also available and can be completed manually. For

readability the Client Authorisation form should be completed in Arial font with a minimum

font size of 10 point. If the form is completed manually blue or black ink should be used.

An example of a completed Client Authorisation is shown overleaf.

6 FREQUENTLY ASKED QUESTIONS

Q1: Can I design my own version of the Client Authorisation?

A1: No. The Client Authorisation must be in the form required by the Participation

Rules. This is to ensure that everyone is participating in a conveyancing transaction

on the same terms.

Q2: Where can I get a Client Authorisation form?

A2: A Client Authorisation form is available on the ARNECC website at

http://www.arnecc.gov.au/.

Q3: If I am a conveyancer or lawyer and I use an agent to verify the identity of my

client, do I need to sign the Client Authorisation as well as my agent?

A3: No. The form is signed either by the conveyancer or lawyer or their agent in order to

certify that reasonable steps were taken to ensure the form was signed by the client

or by the client’s attorney or agent.

When a conveyancer or lawyer uses an agent to verify the identity of their client and

the Client Authorisation is signed by the client at the same time only the agent needs

to sign the Client Authorisation form.

http://www.arnecc.gov.au/

http://www.arnecc.gov.au/


Q4: Do I need to complete a Client Authorisation if I am a sole trader conveyancer

or lawyer and I am representing myself?

A4: No. If you are a sole trader conveyancer or lawyer, you are allowed to represent

yourself in an electronic lodgment network without signing a Client Authorisation.

Q5: If I am a financial institution acting on my own behalf, do I need a Client

Authorisation to lodge a mortgage or discharge a mortgage over my

customer’s property?

A5: No. When lodging a mortgage or discharge of mortgage you are not representing

your customer.

Q6: Does the Client Authorisation take the place of the usual retainer agreement or

authority to act entered into between my client and me?

A6: No. The Client Authorisation is required in addition to the usual retainer agreement

or authority to act. The usual retainer agreement or authority to act cannot be

inconsistent with the Client Authorisation.

Q7: Can I incorporate the Client Authorisation in my usual retainer agreement or

authority to act?

A7: No. As the Client Authorisation is a prescribed form and may be required for

evidence it must be a separate document.

Q8: Can a Client Authorisation be signed overseas?

A8: Yes. An overseas client is to be treated the same as a client in Australia and

therefore a Client Authorisation form can be signed overseas.

__________

CLIENT AUTHORISATION When this form is signed, the Subscriber is authorised to act for the Client in a Conveyancing Transaction(s).

Privacy Collection Statement: The information in this form is collected under statutory authority and used for the purpose of maintaining publicly searchable registers and indexes.

Subscriber Reference: BLOGGS-16-4-15

CL

IEN

T D

ET

AIL

S

CLIENT 1 CLIENT 2

NAME FREDERICK BLOGGS FREDA BLOGGS

ACN/ARBN

ADDRESS 11/53 ALBERT ST, BRISBANE 11/53 ALBERT ST, BRISBANE

TR

AN

SA

CT

ION

DE

TA

ILS

AUTHORITY TYPE SPECIFIC AUTHORITY

(transaction details below) STANDING AUTHORITY

ends on revocation or expiration date:___/____/___ BATCH AUTHORITY

(attach details)

CONVEYANCING TRANSACTION(S) 1 CONVEYANCING TRANSACTION(S) 2

PROPERTY ADDRESS

11/53 ALBERT ST, BRISBANE 10/100 QUEEN ST, BRISBANE

LAND TITLE REFERENCE(S) (and/or property description)

71011681

LOT 1 ON RP 1569

CONVEYANCING

TRANSACTION(S)

TRANSFER MORTGAGE CAVEAT TRANSFER MORTGAGE CAVEAT

PRIORITY/ SETTLEMENT NOTICE

DISCHARGE/ RELEASE OF MORTGAGE

WITHDRAW CAVEAT

PRIORITY/ SETTLEMENT NOTICE

DISCHARGE/ RELEASE OF MORTGAGE

WITHDRAW CAVEAT

OTHER OTHER

ADDITIONAL INSTRUCTIONS

SALE OF THIS PROPERTY PURCHASE OF THIS PROPERTY

CL

IEN

T A

UT

HO

RIS

AT

ION

AN

D S

IGN

ING

CLIENT 1 / CLIENT AGENT 1 CLIENT 2 / CLIENT AGENT 2

I CERTIFY that:

(a) I am the Client or Client Agent; and

(b) I have the legal authority to instruct the Subscriber in relation to the Conveyancing Transaction(s); and

(c) If I am acting as a Client Agent that I have no notice of the revocation of my authority to act on behalf of the Client.

I AUTHORISE the Subscriber to act on my behalf, or where I am a Client Agent to act on behalf of the Client, in accordance with the terms of this Client Authorisation and any Participation Rules and any Prescribed Requirement to:

(a) sign Documents on my behalf as required for the Conveyancing Transaction(s); and

(b) submit or authorise submission of Documents for lodgment with the relevant Land Registry; and

(c) authorise any financial settlement involved in the Conveyancing Transaction(s); and

(d) do anything else necessary to complete the Conveyancing Transaction(s).

Frederick Bloggs DATE 16 / 4 /15

SIG

N H

ER

E

Freda Bloggs DATE 16 / 4 /15

SIG

N H

ER

E

CLIENT/CLIENT AGENT NAME:

CAPACITY:

FREDERICK BLOGGS CLIENT/CLIENT AGENT NAME:

CAPACITY:

FREDA BLOGGS

SU

BS

CR

IBE

R D

ET

AIL

S A

ND

SIG

NIN

G

SUBSCRIBER AGENT (if applicable)

NAME Lamb Lawyers

ACN/ARBN 101 469 147

ADDRESS 1/100 QUEEN STREEN, BRISBANE

I/We CERTIFY that reasonable steps have been taken to ensure that this Client Authorisation was signed by each of the Persons named above as Client or Client Agent.

SIGNATURE OF SUBSCRIBER OR AGENT IF APPLICABLE:

Lawrence

Lawyer DATE 16 / 4 /15

SIG

N H

ER

E

DATE / /

SIG

N H

ER

E

SIGNATORY NAME:

LAWRENCE LAWYER SIGNATORY NAME:

CAPACITY: CAPACITY:


Terms of this Client Authorisation

1. What is Authorised

The Client authorises the Subscriber to act on behalf of the Client in accordance with the terms of

this Client Authorisation and any Participation Rules and any Prescribed Requirement to:

(a) sign Documents on the Client’s behalf as required for the Conveyancing Transaction(s); and

(b) submit or authorise submission of Documents for lodgment with the relevant Land Registry; and

(c) authorise any financial settlement involved in the Conveyancing Transaction(s); and

(d) do anything else necessary to complete the Conveyancing Transaction(s).

The Client acknowledges that the Client is bound by any Documents required in connection with a

Conveyancing Transaction that the Subscriber signs on the Client’s behalf in accordance with this

Client Authorisation.

2. Mortgagees

Where:

(a) the Subscriber represents the Client in the Client’s capacity as mortgagee; and

(b) the Client represents to the Subscriber that the Client has taken reasonable steps to verify the identity of the mortgagor

the Client indemnifies the Subscriber for any loss resulting from the Client’s failure to take

reasonable steps to verify the identity of the mortgagor.

3. Revocation

This Client Authorisation may be revoked by either the Client or the Subscriber giving notice in

writing to the other that they wish to end this Client Authorisation.

4. Privacy and Client Information

The Client acknowledges that information relating to the Client that is required to complete a

Conveyancing Transaction, including the Client’s Personal Information, may be collected by and

disclosed to the Duty Authority, the ELNO, the Land Registry, the Registrar and third parties (who

may be located overseas) involved in the completion of the Conveyancing Transaction or the

processing of it, and consents to the collection and disclosure of that information to any of those

recipients, including to those who are overseas. For further information about the collection and

disclosure of your Personal Information, refer to the relevant party’s privacy policy.

5. Applicable Law

This Client Authorisation is governed by the law in force in the Jurisdiction in which the Property is

situated. The Client and the Subscriber submit to the non-exclusive jurisdiction of the courts of that

place.

6. Meaning of Words Used in this Client Authorisation

In this Client Authorisation, capitalised terms have the meaning set out below:

Agent means a Person authorised by a Subscriber to act as the Subscriber’s agent. For the avoidance of doubt this can include an Identity Agent.

Australian Legal Practitioner has the meaning given to it in the relevant legislation of the Jurisdiction in which the property is situated and in South Australia is a legal practitioner for the purposes of the Legal Practitioners Act 1981 (SA).

Batch Authority means an authority for the Subscriber to act for the Client in a batch of Conveyancing Transactions details of which are attached to this Client Authorisation.

Capacity means the role of the signatory (for example an attorney or a director of a company).

Caveat means a Document giving notice of a claim to an interest in land that may have the effect of an injunction to stop the registration of a Registry Instrument in the Titles Register.

Client means the Person or Persons named in this Client Authorisation.

Client Agent means a Person authorised to act as the Client’s agent but does not include the Subscriber acting solely as the Client’s Representative.

Conveyancing Transaction has the meaning given to it in the ECNL.


Discharge/Release of Mortgage means a Registry Instrument that discharges or releases a Mortgage.

Document has the meaning given to it in the ECNL.

Duty Authority means the State Revenue Office of the Jurisdiction in which the property is situated.

ECNL means the Electronic Conveyancing National Law as adopted or implemented in a Jurisdiction by the application law, as amended from time to time.

ELNO means Electronic Lodgment Network Operator and has the meaning given to it in the ECNL.

Identity Agent means a Person who is an agent of either a Subscriber, or a mortgagee represented by a Subscriber, and who: (a) the Subscriber or mortgagee reasonably believes is reputable, competent and insured in

compliance with Insurance Rules 2; and

(b) is authorised by the Subscriber or mortgagee to conduct verification of identity on behalf of the Subscriber or mortgagee in accordance with the Verification of Identity Standard.

Insurance Rules has the meaning given to it in the Participation Rules.

Jurisdiction means an Australian State or Territory.

Land Registry means the agency of a State or Territory responsible for maintaining the Jurisdiction’s Titles Register.

Land Title Reference means the relevant Land Registry’s unique identifier(s) for the property.

Licensed Conveyancer means a Person licensed or registered under the relevant legislation of the Jurisdiction in which the property is situated and in Western Australia is a real estate settlement agent for the purposes of the Settlement Agents Act 1981 (WA).

Mortgage means a Registry Instrument by which a Person charges an estate or interest in land as security.

Participation Rules, as amended from time to time, has the meaning given to it in the ECNL.

Person has the meaning given to it in the ECNL.

Personal Information has the meaning given to it in the Privacy Act 1988 (Cth).

Prescribed Requirement means any Published requirement of the Registrar that Subscribers are required to comply with.

Priority/Settlement Notice means a notice (other than a Caveat) which prevents (subject to specified exceptions) registration or recording in the Titles Register of a Registry Instrument or other Document affecting land or an interest in land until the notice lapses or is withdrawn, removed or cancelled.

Publish means, for any information, to publish the information on the Registrar’s website.

Registrar has the meaning given to it in the ECNL.

Registry Instrument has the meaning given to it in the ECNL.

Representative means a Subscriber who acts on behalf of a Client.

Specific Authority means an authority for the Subscriber to act for the Client in completing the Conveyancing Transactions described in this Client Authorisation.

Standing Authority means an authority for the Subscriber to act for the Client for a period of time set out in this Client Authorisation.

Subscriber is the Person named in this Client Authorisation and has the meaning given to it in the ECNL or for a paper Conveyancing Transaction is an Australian Legal Practitioner or a Licensed Conveyancer.

Titles Register has the meaning given to it in the ECNL.

Transfer includes the preparation of all documents required to effect a purchase or sale of land or any other transfer of land, and the liaison with, where relevant, any mortgagee or proposed mortgagee.

Withdrawal of Caveat means a Document which removes a Caveat.

1 ARNECC MPR Version 3 Guidance Note #2: Verification of Identity – Updated January 2016


VERIFICATION OF IDENTITY

1 INTRODUCTION


what verification of identity is;

why verification of identity is required;

when verification of identity is required; and

how verification of identity is to be carried out.





2 WHAT IS VERIFICATION OF IDENTITY?

Verification of identity is a process carried out to ensure that a person is who they claim to

be.

The Participation Rules for electronic conveyancing require a Subscriber to take

reasonable steps to verify the identity of:

Clients;

Mortgagors;

Persons to whom certificates of title are provided;

Signers; and

Subscriber Administrators.

3 WHY IS VERIFICATION OF IDENTITY REQUIRED?

The purpose of carrying out verification of identity is to reduce the risk of identity fraud and

the registration of fraudulent land transactions. Verification of identity of clients and

2


mortgagors is considered to be part of the due diligence required of conveyancing

professionals. With the introduction of electronic conveyancing, a Subscriber who is

representing a client will sign registry instruments or other electronic documents on the

client’s behalf. In a similar way, mortgagees can sign a mortgage certifying that they hold

a valid mortgage from the mortgagor.

In order for other participants in a conveyancing transaction to have confidence in the

registry instruments or documents, it is vital that the client’s or mortgagor’s identity is

verified.

4 WHEN IS VERIFICATION OF IDENTITY REQUIRED?

The various circumstances when verification of identity is required to be undertaken are

outlined below.

4.1 Clients

A Subscriber must identify each client for which it has authority to sign. Where the client:

is an individual, the identity of that individual must be verified; or

is a company, the existence of the company must be confirmed and the identity of

the person or persons signing for the company or witnessing the company seal must

be verified; or

has appointed an individual as an attorney to sign for the client, the identity of

the attorney must be verified; or

has appointed a company as an attorney to sign for the client, the existence of

the company must be confirmed and the identity of the person or persons signing for

the company or witnessing the company seal must be verified.

4.2 Mortgagor

If a Subscriber is an incoming mortgagee (for example, a financial institution acting for

itself), the Subscriber must verify the identity of the mortgagor or their agent.

If a Subscriber is representing an incoming mortgagee (for example a law firm on the

panel for a financial institution) it must verify the identity of the mortgagor or their agent,

unless it is reasonably satisfied that the mortgagee has taken reasonable steps to verify

the identity of the mortgagor or their agent.

4.3 Paper certificates of title

A Subscriber must verify the identity of any client or client agent before giving them a

duplicate or paper certificate of title.


A Subscriber must verify the identity of any mortgagor, former mortgagor or their agent

before giving them a duplicate or paper certificate of title.

4.4 Signers

A Subscriber must verify the identity of each person who is to digitally sign documents on

its behalf prior to a Digital Certificate being allocated to that person.

4.5 Subscriber Administrators

The Subscriber must verify the identity of each person whom it appoints as a Subscriber

Administrator, prior to their appointment as a Subscriber Administrator.

5 HOW IS VERIFICATION OF IDENTITY TO BE CARRIED OUT?

In all of the circumstances outlined above, a Subscriber is required to take reasonable

steps to verify the identity of the person.

Where a Subscriber is an organisation, any duly authorised person can undertake the

verification of identity.

A Subscriber must give a certification in the registry instrument for the conveyancing

transaction that reasonable steps have been taken to verify identity.

5.1 What are reasonable steps?

“Reasonable steps” is a commonly used legal concept. When applied to Subscribers and

mortgagees, it means the taking of such steps as an ordinarily prudent Subscriber or

mortgagee would have taken in the circumstances and in the ordinary course of his or her

business. Whether reasonable steps were taken will be a question of fact depending on

the circumstances of the individual case. Ultimately, this would be determined by a Court

on an objective basis.

The Subscriber decides what steps to take to verify the person’s identity. What

constitutes reasonable steps may be influenced by various factors that when taken into

account contribute to a Subscriber being able to reasonably have confidence in the

person’s identity. Examples of these factors might include the length of time a Subscriber

has known the person or whether they have represented the person on previous

occasions. Where a mortgagee represented by a Subscriber undertakes the verification

of identity and therefore determines what steps to take to verify the mortgagor’s identity,

the Subscriber must be reasonably satisfied that the mortgagee took reasonable steps.

A standard for undertaking verification of identity is set out in Schedule 8 of the

Participation Rules. This Verification of Identity Standard is not mandatory. However, if


this Verification of Identity Standard is properly carried out by one of the prescribed

categories of people the Subscriber will be deemed to have taken reasonable steps to

verify identity.

The Verification of Identity Standard is one set of reasonable steps but there are other

reasonable steps that can be taken to verify identity.

Subscribers are required to retain evidence supporting the verification of identity in order

to demonstrate that reasonable steps were taken.

5.2 How can verifications be conducted overseas?

Where a Subscriber’s client or a mortgagor is overseas, the Subscriber or mortgagee

(represented by a Subscriber) needs to decide what steps to take to verify the person’s

identity having regard to the available services and options under the circumstances.

One available option is to utilise the services of an Australian Embassy, High Commission

or Consulate coupled with any necessary further steps in order for the Subscriber or

mortgagee to be reasonably confident in the person’s identity. This process is detailed in

the Appendix to this Guidance Note.

An international financial institution or law practice would also be able to use overseas

personnel to conduct verification of identity.

5.3 When can an agent be used?

A Subscriber can use an agent to undertake verification of identity on its behalf.

A Subscriber that engages an agent to conduct a verification of identity must direct the

agent how to conduct the verification of identity. This could be by using the Verification of

Identity Standard or some other way that constitutes taking reasonable steps.

However, if the Verification of Identity Standard is used the requirements for an Identity

Agent must be met.

A Subscriber should obtain from their agent supporting documentation so the Subscriber

can make the required verification of identity certification. Refer to Participation Rules

Guidance Note #3: Certifications.

5.4 Signing of a Client Authorisation or Mortgage

Ideally, a Client Authorisation would be signed at the same time as the verification of

identity is undertaken in order to ensure it is signed by the client or client agent. However,

there may be instances where these processes are not able to occur simultaneously. In

these instances the Subscriber needs to take reasonable steps to ensure that the Client

Authorisation is being signed by their client or the client’s agent that was identified.


Similarly for the granting of a mortgage, the Subscriber must take reasonable steps to

ensure that it is the mortgagor that was identified that grants the mortgage.

This may be done by referencing the verification of identity supporting documentation and

ensuring it is the same person signing.

5.5 Further Steps

What constitutes reasonable steps is dependent on the circumstances of each individual

case. Further enquiries should be made where doubt arises, or should reasonably have

arisen, in relation to a transaction and a person’s identity.

The Participation Rules require further steps to be taken where:

an identity document does not appear to be genuine;

a photograph on an identity document is not a reasonable likeness;

the person being identified does not appear to be the person to which the identity

documents relate; or

it is otherwise reasonable to take further steps.

Some circumstances where it may otherwise be reasonable to take further steps could

include:

where the client has very limited identity documents and there is no explanation as

to why; or

where you become aware the identity documents have been cancelled; or

where there appears to be an inconsistency between the identity documents and the

Client Authorisation or mortgage, such as differing signatures; or

where an agent is used and there appears to be inconsistencies in the supporting

documentation they provided in relation to verification of identity.

Examples of further steps that could be taken include (but are not limited to):

obtaining more identity documents;

making enquiries with the client or third parties;

where the identity documents are Australian using electronic verification services;

where it is a foreign identity document checking the document looks the same as

those on the respective country’s government website;

where the identity document is in another language having the identity document

translated by an authorised translator;

where the verification is unable to be conducted face-to-face due to remoteness

conducting the verification by electronic means with further steps to satisfy yourself

of the person’s identity.


Some circumstances may not be directly linked to verification of identity but may raise

awareness that greater care should be taken in relation to a particular transaction and the

person being identified. For example, the transaction is urgent, you doubt the veracity of

the instructions, it involves a non-standard mortgage of an unencumbered title or the client

has limited English. Whilst such transactions may be legitimate, it may be necessary to

verify the circumstances surrounding the transaction. For example, checking the reason

for urgency or engaging an independent interpreter.

5.6 Previous verification of identity

Where a verification of identity has occurred within the previous 2 years (either by

applying the Verification of Identity Standard or some other way that constitutes

reasonable steps), the person’s identity does not need to be verified again, provided the

Subscriber takes reasonable steps to ensure they are dealing with the person who was

previously identified. It is expected the Subscriber would review the evidence for the

previous verification in order to be able to satisfy themselves that they are dealing with

one and the same person.

5.7 What is the Verification of Identity Standard?

The Verification of Identity Standard sets out procedures for how verification of identity

may be performed. If the Standard is properly carried out by one of the prescribed

categories of people then it will be deemed reasonable steps. Where there is a dispute

the Subscriber will be required to prove that the Verification of Identity Standard was

properly carried out for it to be deemed reasonable steps.

5.7.1 Who can use the Verification of Identity Standard?

Anyone can use the Verification of Identity Standard. However, for it to be deemed

reasonable steps the Standard must be properly carried out by one of the following

categories of people:

Subscriber

The Subscriber can apply the Verification of Identity Standard themselves.

Mortgagee (where the mortgagee is represented by a Subscriber)

Where a mortgagee is not a Subscriber themselves but is represented by a

Subscriber, the mortgagee can apply the Verification of Identity Standard to

undertake verification of the identity of the mortgagor.

Identity Agent


An Identity Agent is an agent of either the Subscriber or a mortgagee that is

represented by a Subscriber.

The Subscriber or the mortgagee must reasonably believe the Identity Agent is reputable,

competent and insured. An Identity Agent must maintain minimum levels of insurance.

The Verification of Identity Standard can be applied in whole or in part by any of the above

categories of people acting as the Identity Verifier in the Standard. For example, the

Subscriber may do some of the verification related to companies such as establishing who

is authorised to sign for the company but use an Identity Agent to do the face-to-face

verification of identity of the company’s officers. Alternatively, the Subscriber may engage

an Identity Agent and direct them to undertake the Verification of Identity Standard in its

entirety.

5.7.2 How is the Verification of Identity Standard used?

This section describes how the Verification of Identity Standard is used, and what is

required of those using it in various situations.

5.7.2.1 Face-to-face verification

To comply with the Verification of Identity Standard the person undertaking the verification

(Identity Verifier) must conduct a face-to-face in-person interview with the person to be

identified.

The Identity Verifier must carefully inspect the documents used to verify the identity and

ensure the documents are current (except for an expired Australian passport which may

have expired within the last two years) and original. Any photographs on the documents

must reasonably correspond with the appearance of the person to be identified.

5.7.2.2 Identification Document Categories

The Person Being Identified must supply original identification documents from the list of

documents in the categories in the Verification of Identity Standard. The first assessment

that needs to be made is whether or not the Person Being Identified is an Australian

citizen or resident. If they are, then Categories 1 to 5 must be used. If they are not,

Category 6 must be used. The highest category available must be used. A lower level

category can only be used if the person being identified does not possess the documents

required for the higher level, the documents have expired, or if the document is an

Australian passport that has been expired for a period of more than 2 years.

The document categories in the Verification of Identity Standard require that a change of

name or marriage certificate is to be provided if applicable. There may be instances

where identification documents issued by different government departments have been


registered in differing names but a change of name certificate is not appropriate, as that

individual has not changed and/or does not intend to officially change their name. In such

a situation an Identity Verifier must take reasonable steps to ensure the person being

identified is one and the same person as in the varying identification documents provided.

This may involve the Identity Verifier undertaking further checks to verify that person’s

identity.

Category 5 is for Australian residents who need to use an Identity Declarant. An Identifier

Declaration is a statutory declaration by a person who knows the person being identified.

The person making the statutory declaration is called the Identity Declarant. There are

specific prescribed requirements on who can be an Identity Declarant and what must be

included in the Identifier Declaration. The Identity Declarant must also have their identity

verified by the Identity Verifier using the Verification of Identity Standard. However, the

identity of the Identity Declarant cannot be verified by a further Identity Declarant.

5.7.2.3 Verification of Identity of Bodies Corporate

For a body corporate, an Identity Verifier must:

confirm the existence of the body corporate;

take reasonable steps to establish who is authorised to sign for the body corporate

or witness the affixing of any seal; and

verify the identity of the individuals signing or affixing the seal on behalf of the body

corporate.

5.7.2.4 Verification of Identity of Attorneys

For an attorney who is an individual, an Identity Verifier must:

confirm the details of the person appointing the attorney and the attorney from the

(registered) power of attorney;

take reasonable steps to establish that the conveyancing transaction is authorised

by that power of attorney; and

verify the identity of the attorney.

For an attorney who is a body corporate the Identity Verifier must:

confirm the details of the person appointing the attorney and the attorney from the

(registered) power of attorney;

take reasonable steps to establish that the conveyancing transaction is authorised

by that power of attorney;

confirm the existence of the body corporate;


take reasonable steps to establish who is authorised to sign for the body corporate

or witness the affixing of any seal; and

verify the identity of the individuals signing or affixing the seal on behalf of the body

corporate.

5.7.2.5 Evidence Required from an Identity Agent

Where the verification of identity is conducted by an Identity Agent, the Subscriber or

mortgagee (represented by a Subscriber) must receive from the Identity Agent an Identity

Agent Certification as set out in Schedule 9 of the Participation Rules.

The Identity Agent Certification details:

to whom the verification of identity relates;

when it was carried out and by whom;

what verification of identity documents were used; and

states that it was done in accordance with the Verification of Identity Standard as

directed by the Subscriber.

The Identity Agent must also provide copies of the identity documents relied on endorsed

as true copies.


Q1: How do I verify the identity of my client who is overseas?

A1: You need to decide what steps to take to verify the person’s identity having regard

to the available services and options under the circumstances.

One option may be to utilise the services of an Australian Embassy, High

Commission or Consulate (as set out in the Appendix), coupled with further steps in

order for the Subscriber or mortgagee (represented by a Subscriber) to be

reasonably confident in the person’s identity.

Further steps may include: making enquiries with the client or third parties, where

the identity documents are Australian using electronic verification services, where it

is a foreign identity document checking the document looks the same as on the

respective country’s government website, where the identity document is in another

language having the identity document translated by an authorised translator, or

where the verification is unable to be conducted face-to-face due to remoteness

conducting the verification by electronic means with further steps to satisfy yourself

of the person’s identity.


Q2: My client has one name on his/her passport and an anglicised or abbreviated

version of that name on his/her driver’s licence? What should I do?

A2: It is possible that documents issued by different government departments may have

differing versions of a name.

You must take reasonable steps to ensure the person required to be identified is

one and the same person referenced in the differing documents. Examples which

may be appropriate in some circumstances are:

sighting other types of documents or letters issued by an employer,

government agency or educational institution and showing the person’s name

and other details;

seeking confirmation from relevant organisations of the information given by

the person and whether they are aware that the person is also known by

another name; and

asking the person questions about the reasons for the differing names,

recording their answers and recording whether and on what basis you

considered those answers to be satisfactory.

Q3: Can I store supporting evidence of the verification of identity electronically?

A3: Yes. Verification of identity evidence can be stored electronically. However, the

medium and means in which documents supporting the verification of identity are to

be retained is to be determined by the Subscriber in light of the possible need to

produce those documents as evidence to a Court. Whichever medium is utilised the

evidence should be safely and securely stored. Evidence supporting the verification

of identity is required to be kept for 7 years from lodgment. Refer to Participation

Rules Guidance Note #5: Retention of Evidence.

Q4: Will verification of identity cause delays in the conveyancing process?

A4: Verification of identity should not cause delays in the conveyancing process as it is

considered part of existing prudent conveyancing practice. It is expected that some

form of verification of identity is already being undertaken in the paper conveyancing

process.

Q5: Can a mortgage broker act as an Identity Agent for a mortgagee?

A5: Yes. A mortgage broker can act as an Identity Agent for a mortgagee for the

purpose of verifying the identity of a mortgagor. The mortgage broker must be

providing credit services related to real property and be either a holder of an

Australian Credit Licence, a credit representative of a holder of an Australian Credit


Licence, or an employee or director of the holder of an Australian Credit Licence or

of a related body corporate of a holder of an Australian Credit Licence engaging in

the credit service on behalf of that licensee. The mortgage broker must hold or be

covered by insurance in accordance with legislative requirements and which

includes cover for verification of identity.

Q6: I have known some of my clients for over 30 years and have previously used

their legal names in legal documents. Why should I verify their identity just

because I have not seen them in the last two years?

A6: If the Verification of Identity Standard is not applied, the Subscriber must determine

what actions it considers would, in the circumstances, constitute the taking of

reasonable steps to verify the client’s identity. A situation where you have known

the client for over 30 years may be one where you decide that the requirement to

take reasonable steps to identify the client is satisfied by the years of interaction with

that client.

Q7: I am a Subscriber who is a financial institution. Can I use the AML/CTF Know

Your Customer schema to verify the identity of my mortgagor?

A7: A Subscriber must determine for itself what steps it considers constitutes the taking

of reasonable steps to verify the identity of a client, or, in this case, a mortgagor. It

may be reasonable, in the circumstances, to use the AML/CTF schema. The risk of

determining what is reasonable in the circumstances lies with the Subscriber.

Q8: A 92 year old in a nursing home needs to sell her home to pay an

accommodation bond. She has not seen her solicitor for at least 25 years.

She has never had a passport or driver’s licence. How should a Subscriber

determine what may constitute reasonable steps?

A8: In this situation some matters the Subscriber may consider in deciding what steps to

take to verify their client’s identity may include:

Will you take your own reasonable steps or seek to apply the Verification of

Identity Standard?

Can the verification of identity be conducted face-to-face? If yes, by whom? If

not, what other means can be used to verify the client’s identity?

What forms of identification are available? For instance what forms of

identification were used to obtain accommodation in the nursing home?

If you wish to apply the Verification of Identity Standard and the client has

limited identification documents, is there someone who could provide an


Identifier Declaration, such as a doctor, nurse, police officer, social worker or

minister of religion?

Whether ‘reasonable steps’ were taken will be a question of fact depending on the

circumstances of the individual case. Ultimately, this would be determined by a

Court on an objective basis.

Q9: An 18 year-old wishes to take a transfer of land he has just inherited. He has

no passport or driver’s licence. How should a Subscriber determine what may

constitute reasonable steps?




Identity Standard?


not, what other means can be used to verify the client’s identity?

What forms of identification are available?

As this is an 18 year old who would regularly be required to prove his age, is a

photo card available?

Is there enough other evidence to apply the Verification of Identity Standard?

Is there a birth certificate and Medicare card that can be used?

If there is not enough evidence available to apply the Verification of Identity

Standard, what other forms of identification are available?


limited identification documents is there someone who could provide an

Identifier Declaration, such as a teacher, lecturer, employer, doctor, nurse or

police officer?

Whether ‘reasonable steps’ were taken will be a question of fact depending on the



Q10: A person who lives in a remote aboriginal community is buying land. How

should a Subscriber determine what may constitute reasonable steps?



Is this an existing client?



Identity Standard?

Can the verification of identity be undertaken face-to-face? If yes, by whom?

If not, how can it be undertaken?


Is there enough other evidence to apply the Verification of Identity Standard?



Identifier Declaration, such as an employer, doctor, nurse, community leader,

police officer, bank manager, Centrelink officer or other government officer?

Whether reasonable steps were taken will be a question of fact depending on the



Q11: An elderly person discovers that his or her birth has never been registered

and does not have documentation regarding the birth. How should a

Subscriber determine what may constitute reasonable steps?

A11: In this situation one of the main considerations for the Subscriber is what

identification documentation is available given that there are limitations regarding

documentation that proves the client’s birth.

The Subscriber could consider if they are able to use Category 5(b) in the

Verification of Identity Standard, which was included for circumstances where limited

identity documentation exists. In doing so they would need to consider the

following:

Is this an existing client?


Identity Standard?


not, how can it be undertaken?


Does the client have a Medicare card?

What other documents are available to evidence the client’s current and

former living arrangements, ownership of assets and involvement in society

using the identity they claim?




Identifier Declaration, such as a doctor, nurse, police officer, bank manager,

social worker or minister of religion?

Whether reasonable steps were taken will be a question of fact depending on the



__________


Appendix

Australian Embassy/High Commission/Consulate Overseas Verification of Identity and Witnessing Process

1 A client or mortgagor located overseas contacts a Subscriber or mortgagee concerning a conveyancing transaction relating to Australian land.

2 The Subscriber or mortgagee takes initial instructions from the client or mortgagor and

conducts preliminary enquiries – full name and contact details for the client or mortgagor, land description, transaction details (sale, purchase, mortgage etc).

3 The Subscriber or mortgagee reviews with the client or mortgagor what identification

documents they have available to them and determines the highest document category in the Verification of Identity Standard they can satisfy.

4 The Subscriber or mortgagee advises the client or mortgagor that they will need to have

their identity verified and signature witnessed by an employee at an Australian Embassy, High Commission or Consulate (Australian Consular Office). The Subscriber or mortgagee advises the client or mortgagor to find out where the nearest Australian Consular Office is located, to make preliminary contact with the Australian Consular Office to make an appointment (where necessary) and to notify the Subscriber or mortgagee of the Australian Consular Office location.

5 The Subscriber or mortgagee takes reasonable steps to determine the client or

mortgagor’s right to deal as a particular party to the conveyancing transaction. 6 The Subscriber or mortgagee prepares a Client Authorisation or mortgage and the

approved Australian Embassy/High Commission/Consulate Identity/Witnessing Certification (Certification) and sends them to the client or mortgagor with written instructions advising of the process and what original and current identification documents are to be produced at the nominated Australian Consular Office (passport, driver’s license etc). The format of the Certification is at the end of this Appendix and the Certification Form is available from the ARNECC website.

7 The client or mortgagor attends the nominated Australian Consular Office with the

prepared Client Authorisation or mortgage and Certification, original identification documents and the Subscriber or mortgagee’s written instructions.

8 The Australian Consular Office satisfies itself that the photos on the identification

documents produced by the client or mortgagor are a reasonable likeness of the client or mortgagor. If this is not possible, the Australian Consular Office service is terminated.

9 When reasonable likeness is confirmed, the Australian Consular Office:

prepares endorsed copies of all original identification documents produced by the client or mortgagor;

asks the client or mortgagor to sign the Client Authorisation or mortgage and the Australian Consular Office witnesses the client or mortgagor’s signature on the Client Authorisation or mortgage; and

completes, signs, dates and endorses the Certification for the client or mortgagor. 10 The Australian Consular Office hands to the client or mortgagor the:

original identification documents;

signed Client Authorisation or mortgage,


signed, dated and endorsed copies of the original identification documents produced; and

signed, dated and endorsed Certification. 11 The client or mortgagor delivers the signed Client Authorisation or mortgage, endorsed

copies of the original identification documents produced and the Certification to the Subscriber or mortgagee. (The means of delivery are to be arranged between the client or mortgagor and the Subscriber or mortgagee.)

12 If the Subscriber or mortgagee has any reason to doubt the authenticity of any of the

documents received from the client or mortgagor, copies of the Australian Consular Office endorsements and Certification can be referred to the Department of Foreign Affairs and Trade (DFAT) by email for confirmation that the signatures and stamps appearing on the documents are that of a DFAT officer. For example, if the documents don’t bear a stamp of the Australian Consular Office, the name of the Australian Consular Office officer is not clear or there are other circumstances surrounding the transaction that cause doubt, such as signatures of clients not matching.

The following process applies for these referrals:

The Subscriber or mortgagee emails the Australian Consular Office officer who made the endorsements and certification using the standard email format <firstname>.<lastname>@dfat.gov.au (or in the same format with @austrade.gov.au for those consulates run by Austrade) supplying details of the service provided to the client or mortgagor and requesting confirmation that the Australian Consular Office provided the service. The request is to include copies of the endorsed document copies and the Certification supplied by the client or mortgagor. The reason for the referral is to be included in the request to allow DFAT to determine whether any aspect of the Australian Consular Office’s service gave rise to the referral.

The Australian Consular Office will, if work demands allow, reply to the request providing confirmation of the service provided. Alternatively, the Subscriber or mortgagee will receive an automatic read receipt email confirming that the Australian Consular Office officer exists as an employee of DFAT.

If the Subscriber or mortgagee receives no response or cannot for any reason determine the name of the Australian Consular Office officer who made the endorsements or certification (for example, when the Australian Consular Office stamp obscures part of the Australian Consular Office officer’s name), the Subscriber or mortgagee should email DFAT’s Consular Policy Unit at [email protected] requesting confirmation of the service provided by an Australian Consular Office and, when no response has been received from a request made directly to the Australian Consular Office, attaching a copy of that request.

In responding to confirmation requests DFAT is confirming that the Australian Consular Office officer’s signature and the Australian Consular Office stamp on a document are from an authorised officer.

13 The process for paper transactions is the same by substituting paper instrument for Client

Authorisation and by substituting Australian Legal Practitioner, Law Practice or Licensed Conveyancer for Subscriber.

mailto:%3cfirstname%3e.%3clastname%[email protected]

mailto:[email protected]


Australian Embassy/High Commission/Consulate Identity/Witnessing Certification

“I, ____________________________________________________[full name of authorised employee

/consular or diplomatic officer] of _______________________________________________________[Australian Embassy/High

Commission/Consulate]

being an authorised employee/consular or diplomatic officer within the meaning of the Section 3 of the Consular Fees Act 1955 hereby certify that:

(a) the identification/witnessing relates to

_______________________________________________________________________

[full name of the person being identified] (‘the person being identified’); and

(b) the verification of identity/witnessing was carried out on___________________[date]; and

(c) the original current identification documents as listed below were produced to me and copies of these documents signed, dated and endorsed by me as true copies were provided to the person being identified; and

(d) the verification of identity/witnessing was conducted in accordance with the Department of Foreign Affairs and Trade policy for verification of identity, witnessing signatures on documents and making of endorsed copies and in response to the written instructions provided by the person being identified’s Australian Legal Practitioner, Law Practice, Licensed Conveyancer or mortgagee; and

(e) the person being identified was physically present for the verification of identity and the witnessing of the document(s) listed at paragraph (g); and

(f) I am not a party to the transaction; and

(g) I witnessed the person being identified execute the following document(s)

_______________________________________________________________________ (eg, Client Authorisation, transfer of land, mortgage of land etc); and

(h) this signed, dated and endorsed certification; the signed, dated and endorsed copy identity documents (listed below); and the witnessed document(s) listed in paragraph (g); were returned to the person being identified.

………………………………………………………………………….

Signature of authorised employee/consular or diplomatic officer | Post Stamp

List of identification documents produced (see (c) above):

Description of identity documents produced and endorsed

1 ARNECC MPR Version 3 Guidance Note #3: Certifications – Published September 2015


CERTIFICATIONS

1 INTRODUCTION


what certifications are;

why certifications are required;

when certifications are required; and

how certifications are given.





2 WHAT ARE CERTIFICATIONS?

Certifications are statements made by a Subscriber that they have undertaken a specific

action. They are made by all Subscribers on registry instruments or other electronic

documents.

A Subscriber must give the certifications in their own right, regardless of whether they are

acting for themselves or a client. This includes situations where the Subscriber is a

conveyancer or lawyer who signs on behalf of a client.

Certifications for electronic transactions are set out in Schedule 3 of the Participation

Rules. The Certifications are:

# Subject Certification

1 Identity The Subscriber has taken reasonable steps to verify the identity of the [transferor/transferee/ mortgagee/ mortgagor/ caveator/ applicant].

2 Authority The Subscriber holds a properly completed Client Authorisation for the Conveyancing Transaction including this Registry Instrument or Document.

3


# Subject Certification

3 Evidence The Subscriber has retained the evidence supporting this Registry Instrument or Document.

4 Correctness The Subscriber has taken reasonable steps to ensure that this Registry Instrument or Document is correct and compliant with relevant legislation and any Prescribed Requirement.

5 Mortgagee The Subscriber, or the Subscriber is reasonably satisfied that the mortgagee it represents,:

(a) has taken reasonable steps to verify the identity of the mortgagor; and

(b) holds a mortgage granted by the mortgagor on the same terms as this Registry Instrument.

6 Certificate of Title

(used in Victoria and Western Australia only)

The Subscriber has:

(a) retrieved; and

(b) either securely destroyed or made invalid

the (duplicate) certificate(s) of title for the folio(s) of the Register listed in this Registry Instrument or Document.

3 WHY ARE CERTIFICATIONS REQUIRED?

Certifications on a registry instrument or document give other parties to a transaction

greater certainty that the rules defined in the Participation Rules have been complied with.

The certifications also provide representations by the Subscriber to the Registrar that the

instrument lodged complies with legislation, the Participation Rules and any Prescribed

Requirements.

4 WHEN ARE CERTIFICATIONS REQUIRED?

Certifications are required any time a registry instrument or document is digitally signed.

The certifications required to be provided will vary depending on the Subscriber role and

registry instrument or document type. Refer to table below detailing the application of the

certifications in the most common transactions.

For example:

A Subscriber acting on their own behalf, other than a mortgagee, will be required to

provide only the Evidence and Correctness certifications for registry instruments.

An incoming mortgagee representing itself will be required to provide the Evidence,

Correctness and Mortgagee certifications.

A Subscriber representing a transferor will be required to provide the Identity,

Authority, Evidence and Correctness certifications.


A Subscriber lodging a Priority Notice or Settlement Notice will be required to

provide the Evidence and Correctness certifications.

The Certificate of Title certification is only required for transactions involving land situated

in Victoria and Western Australia. In Victoria the Certificate of Title certification is required

for an administrative notice that converts a paper Certificate of Title to an electronic

Certificate of Title. In Western Australia the Certificate of Title certification is required

when a paper Certificate of Title exists, and is to be provided by the Subscriber who

controls or to whom control of that Certificate of Title is given.

Certifications are also required in some jurisdictions for documents, including Notices of

Sale, Notices of Acquisition, Consents and Lodgment Instructions.

The certifications required in the most common transactions are:

Document Type Party Giving Certifications Certifications Required

Discharge of Mortgage Mortgagee - self-represented 3 and 4 (and 6 for WA)

Subscriber representing mortgagee

1, 2, 3 and 4 (and 6 for WA)

Mortgage Mortgagee - self-represented 3, 4 and 5 (and 6 for WA)

Subscriber representing mortgagee

1, 2, 3, 4 and 5 (and 6 for WA)

Transfer Transferee – self-represented 3 and 4

Subscriber representing transferee

1, 2, 3 and 4

Transferor – self-represented 3 and 4 (and 6 for WA)

Subscriber representing transferor

1, 2, 3 and 4 (and 6 for WA)

Caveat Caveator – self-represented 3 and 4

Subscriber representing caveator 1, 3 and 4

Withdrawal of Caveat Caveator – self-represented 3 and 4

Subscriber representing caveator 1, 2, 3 and 4

Priority Notice/Settlement Notice and Extension of Priority Notice

Applicant – self-represented 3 and 4

Subscriber representing applicant 3 and 4

Withdrawal of Priority Notice


Subscriber representing applicant 3 and 4

Withdrawal of Settlement Notice


Subscriber representing applicant 1, 2, 3 and 4

Administrative Notice to convert and nominate a Certificate of Title

(Victoria Only)

Subscriber 6


5 HOW ARE CERTIFICATIONS GIVEN?

Certifications will be set out in the registry instrument or document when it is presented to

the Subscriber to be signed.

When giving a certification a Subscriber must ensure that it can demonstrate compliance

with the certification.

The compliance requirements for each certification are described below.

5.1 Identity

Compliance with the identity certification can be demonstrated by proving that reasonable

steps were taken to identify the person concerned.

If the Verification of Identity Standard was used, evidence demonstrating the application of

the Verification of Identity Standard is required, such as copies of the identification

documents provided by the Person Being Identified. Refer to Participation Rules

Guidance Note #2: Verification of Identity.

Where an alternative method of identification was taken by the Subscriber, evidence

which demonstrates the reasonable steps taken is required to be kept. For example, a

mortgagee Subscriber may decide that the transaction records it has for long-standing

customers who are well-known to it are sufficient to constitute taking reasonable steps.

5.2 Authority

Where the Authority certification is required, compliance can be proven by producing the

completed Client Authorisation. Refer to Participation Rules Guidance Note #1: Client

Authorisation.

5.3 Evidence

Where the Evidence certification is required, any evidence supporting the conveyancing

transaction must be retained for at least 7 years from the date of lodgment.

This includes Verification of Identity and Client Authorisation evidence as outlined in the

preceding paragraphs, as well as any other supporting evidence for the registry instrument

(for example any form required by the Duty Authority, statutory declarations, trust deeds,

agency arrangements, evidence of death etc.).

It should include any supporting material evidencing that the client or mortgagor has the

right to enter the conveyancing transaction specified in the Client Authorisation or

mortgage.

Evidence supporting the registry instrument is that which is required to satisfy the

Subscriber of the validity of the conveyancing transaction. This will be what is required for


a paper instrument, with the addition of the Client Authorisation and Verification of Identity

evidence (if not currently kept).

There may be cases where there is little supporting evidence, for example for a discharge

of mortgage lodged by the mortgagee. In this case there may only be the mortgagor’s

request for a discharge.

5.4 Correctness

No specific evidence is required to prove compliance with this certification. However, if it

becomes clear that prudent conveyancing practices to ensure correctness of the signed

registry instrument or document were not followed, it is likely that compliance with this

certification will not be demonstrated.

5.5 Mortgagee

Where the Mortgagee certification is required, compliance can be proven by producing a

valid mortgage granted by the mortgagor on the same terms as the mortgage lodged with

the Land Registry, together with evidence of verification of identity of the mortgagor.

5.6 Certificate of Title

No specific evidence is required to prove compliance with this certification. However,

where a certification was provided that a (duplicate) Certificate of Title was invalidated or

destroyed and a valid version of the (duplicate) Certificate of Title appears at a later date,

it will be assumed that this certification was incorrectly given.


Q1: What happens if I can’t give a particular certification?

A1: The certifications provide representations by the Subscriber to the Registrar that the

instrument lodged complies with legislation, the Participation Rules and any

Prescribed Requirements.

The certifications relate to requirements for that particular conveyancing transaction

to proceed. Where one or more certifications cannot be provided then the

transaction should not go ahead, unless and until the Subscriber is satisfied that

they can make the certifications in good faith.

Q2: The Evidence certification appears very broad. Do I need to seek out

supporting evidence that I have not requested as part of the conveyancing

transaction?


A2: No. The evidence required for the Evidence certification is evidence which should

be obtained as part of the process of undertaking the conveyancing transaction in

accordance with prudent practice. You are not required to seek additional

supporting evidence.

Evidence supporting the registry instrument is that which is required to satisfy the

Subscriber of the validity of the conveyancing transaction. This will be what is

required for a paper instrument, with the addition of the Client Authorisation and

Verification of Identity evidence (if not currently kept).

Q3: Does the Evidence certification include all correspondence, emails and

telephone attendance notes?

A3: Evidence should be kept which supports the requirements and the validity of the

conveyancing transaction.

For example, if the correspondence, emails or telephone notes support that

reasonable steps were taken to verify the identity of the transacting party, they

should be kept.

Q4: What would happen if I inadvertently gave a false certification?

A4: The Subscriber is responsible for ensuring all the things being certified are correct.

If the transaction is completed, the consequences of a certification having been

given incorrectly would depend on the outcome of the transaction for each party and

the application of legislation and other laws relevant to the circumstances.

Q5: When is the Certificate of Title certification required?

A5: The Certificate of Title certification is only required for transactions involving land

situated in Victoria and Western Australia. Therefore the certification is not

inconsistent with the prescribed requirements for Control of Right to Deal holders in

New South Wales.

In Victoria the Certificate of Title certification is required for an administrative notice

that converts a paper Certificate of Title to an electronic Certificate of Title. In

Western Australia the Certificate of Title certification is required when a paper

Certificate of Title exists, and is to be provided by the Subscriber who controls or to

whom control of that Certificate of Title is given.

__________

1 ARNECC MPR Version 3 Guidance Note #4: Right to Deal – Published December 2015


RIGHT TO DEAL

1 INTRODUCTION


what right to deal is;

why verification of right to deal is required;

when right to deal must be verified; and

how you verify right to deal.





2 WHAT IS RIGHT TO DEAL?

Right to deal is the entitlement of a person to be a particular party to a conveyancing

transaction.

The Participation Rules for electronic conveyancing require a Subscriber to take

reasonable steps to verify the right to deal of their client, and/or the mortgagor for a

mortgage.

3 WHY IS VERIFICATION OF RIGHT TO DEAL REQUIRED?

A Representative must verify the right to deal of their client. A mortgagee, or a

Representative of a mortgagee, must verify the right to deal of a mortgagor. Verifying right

to deal is considered to be part of the due diligence required of conveyancing

professionals. It is required to ensure that the person who is your client or the intended

mortgagor has the right to deal with the subject property.

4


Verifying right to deal mitigates the risk of a fraudulent transaction and gives the other

parties to an electronic transaction confidence they are transacting with the person who

has the right to transact.

4 WHEN MUST RIGHT TO DEAL BE VERIFIED?

Right to deal must be verified whenever you are representing a client in a conveyancing

transaction, or if you are a mortgagee taking a mortgage (or a Subscriber whose client is a

mortgagee).

Verification of right to deal is closely linked to verification of identity. Prudent

conveyancing practice would be to conduct these processes simultaneously. Refer to

MPR Guidance Note #2: Verification of Identity.

5 HOW DO YOU VERIFY RIGHT TO DEAL?

A Subscriber is required to take reasonable steps to verify the right to deal. Where a

Subscriber is an organisation, any person duly authorised by the Subscriber can

undertake the verification of right to deal.

5.1 What are reasonable steps?

“Reasonable steps” is a commonly used legal concept. When applied to Subscribers and

mortgagees, it means the taking of such steps as an ordinarily prudent Subscriber or

mortgagee would have taken in the circumstances and in the ordinary course of his or her

business. Whether ‘reasonable steps’ were taken will be a question of fact depending on

the circumstances of the individual case. Ultimately, this would be determined by a Court

on an objective basis.

Verifying right to deal will require you to sight supporting evidence that includes the name

of the person whose right to deal is being verified and the property or transaction details.

The supporting evidence should allow you to link the registered interest holder or

transacting party to the land.

More extensive checks and enquiries should be made where doubt arises, or should

reasonably have arisen, in relation to a transaction and a person’s right to deal.

The following examples may help establish right to deal for parties involved in common

transactions. This list is not exhaustive and what constitutes reasonable steps to

verify right to deal will depend on the circumstances.

Reliance on any one document is not conclusive evidence and how much evidence is

required is dependent on the circumstances. For example, reliance on a duplicate


certificate of title may only show that person has access to that title, not that they are the

person who has the right to deal with the land. Such evidence would need to be coupled

with verification of identity and sufficient supporting evidence to satisfy yourself of their

right to deal.

5.2 Outgoing Party and Mortgagor

For a party that is relinquishing their interest, such as a transferor, or a mortgagor

supporting documentation that may assist in establishing right to deal could include

originals, copies or records of the following:

a current local government rates notice

current utility bills for the property

a current land tax assessment notice for the property

loan documentation

the mortgage granted by the mortgagor (if one exists)

the certificate of title/duplicate certificate of title for the property (if one exists) and/or

a recently issued registration confirmation statement for the property.

A title search should be obtained to check who is named as a registered interest holder to

ensure the correct person’s right to deal is being verified.

5.3 Incoming Party

For a party that is coming onto title, such as a transferee or a mortgagee, supporting

documentation that may assist in establishing right to deal could include the following:

the contract of sale for the property

loan documentation

In Queensland to verify right to deal for a caveator you should take reasonable steps to

determine that your client is a person who meets the eligibility requirements for lodging a

caveat under the Land Title Act 1994.

In all other jurisdictions to verify right to deal for a caveator you should take reasonable

steps to determine that your client has a caveatable interest and that you believe the

claims made by the caveator are true in substance and in fact.


5.4 Caveator (withdrawal of caveat)

If you are the Subscriber that represented the caveator named in the caveat, you should

take reasonable steps to ensure that the caveator is the same person you initially

represented.

If you are a different Subscriber to the one that represented the caveator named in the

caveat, production by the caveator of supporting documentation for the caveat could

assist in establishing the caveator’s right to deal.

5.5 Supporting Evidence

You must retain supporting evidence that shows the steps you took to reasonably verify

your client’s or the mortgagor’s right to deal.

This may include copies dated and endorsed as true copies of the supporting

documentation used to verify right to deal and notes on the process undertaken including

any further steps taken.

There are no restrictions on the ways in which you can demonstrate that you took

reasonable steps.

5.6 Further considerations

There are many instances where further consideration is required of what steps need to

be taken to establish a person’s right to deal.

For example, consideration should be given to the following:

Does the transacting party’s name differ on the supporting documentation? If so,

have they changed their name and can they provide documentation to show this?

Is the transacting party subject to a trust? If yes, is the conveyancing transaction

permitted under the trust? Who are the current trustees?

Is there an insolvency event involving one of the transacting parties? If there is an

insolvency event, is the conveyancing transaction permitted under the relevant

legislation?

Is the transacting party a statutory person? What is the correct name of the

statutory person? Is the conveyancing transaction permitted under the relevant

legislation? Are delegations permitted under the relevant legislation? Are the

delegations relevant to the conveyancing transaction correct?

Is the transacting party a successor at law to the registered owner? On what basis

is it a successor at law - statutory vesting, transfer of business or another basis?


Is the transacting party an executor? Is the conveyancing transaction contemplated

by the will?

Is the transacting party a represented person eg under the jurisdiction’s

guardianship and administration legislation? Is the conveyancing transaction

permitted by the relevant orders and under the relevant legislation?

Is a person acting under a power of attorney? If there is a power of attorney, is the

conveyancing transaction permitted under the power? Is the power still current or

has it been revoked? Has the correct person been identified as attorney? Are the

attorneys required to act jointly or severally?

Is the transacting party an incorporated association? If the party is an incorporated

association, is the conveyancing transaction permitted under the relevant rules or

constitution and legislation? Does the conveyancing transaction purport to give

effect to a Court order? Is the conveyancing transaction contemplated by the order?

What constitutes reasonable steps is dependent on the circumstances of each individual

case. Further enquiries should be made where doubt arises, or should reasonably have

arisen, in relation to a transaction and a person’s right to deal. For example where you

know or ought to know:

that the documents being produced for verification of right to deal are not genuine;

or

that the age of the person whose right to deal is being verified does not align with

the likely age of the person who has the right to deal (for example the purported

transferor is too young to have purchased the property at the time it was purchased);

or

of any other circumstance that raises suspicion or should be investigated further.

Other circumstances could include where your client is more than one person and only

one person provides instructions. For example, where your client consists of a couple as

joint tenants. You must verify the right to deal of all of the persons constituting your client.

You should contact all persons comprising your client to confirm their instructions.

Similarly, where your client is an incorporated entity you should ensure you are dealing

with the representatives of the incorporated entity that are duly authorised to provide

instructions.

Some circumstances may not be directly linked to right to deal but may raise awareness

that greater care should be taken in relation to a particular transaction. For example the

transaction is urgent, you doubt the veracity of the instructions, it involves a non-standard

mortgage of an unencumbered title or your client has limited English. Whilst such


transactions may be legitimate, it may be necessary to verify the circumstances

surrounding the transaction, for example, by checking the reason for urgency or engaging

an independent interpreter.


Q1: How do I know that my client John Smith is the same John Smith that is the

proprietor on title who has the right to deal?

A1: What is reasonable depends on the circumstances. You need to take steps to

satisfy yourself which may include simultaneous verification of identity and

verification of right to deal by obtaining supporting evidence to link John Smith to the

property, such as one or more of the documents referred to under Relinquishing

Party above. You should also make further enquiries where doubt arises or should

arise in relation to the instructions and transaction. For example, the purported

transferor is too young to have purchased the property at the time it was purchased

and therefore suspicion should arise that they may be John Smith junior.

Q2: What should I do if I doubt my client has the mental capacity to enter into the

transaction?

A2: You should make further enquiries if you doubt that your client has the mental

capacity to enter into the transaction. Such enquiries could include obtaining a

medical certificate to verify that they have the mental capacity to enter into the

transaction.

Q3: I am a Subscriber representing an incoming mortgagee, what are my

obligations in relation to right to deal?

A3: You must verify the right to deal of your client, in this instance the mortgagee. This

could be done by obtaining loan documentation and any other supporting

documentation that shows they are the intended incoming mortgagee for that

property.

In addition to this you must take reasonable steps to verify that the mortgagor has

the right to enter into the mortgage. This could be done by obtaining the contract of

sale and other related documentation if they are the incoming proprietor. If they are

the current proprietor documentation tying that proprietor to the subject property is

required. For example a current local government rates notice, current utility bills for

the property, a current land tax assessment notice for the property, previous loan

documentation and/or a certificate of title or registration confirmation statement for

the property.

1 ARNECC MPR Version 3 Guidance Note #5: Retention of Evidence – Published December 2015


RETENTION OF EVIDENCE

1 INTRODUCTION


what evidence retention is;

why evidence is required to be retained;

when evidence must be retained; and

how evidence is to be retained.





2 WHAT IS EVIDENCE RETENTION?

Under the Participation Rules evidence supporting a conveyancing transaction must be

kept for at least 7 years from the date of lodgment. The evidence must be legible, stored

safely and securely, and accessible.

A Subscriber is required to retain evidence supporting:

Client Authorisation;

Verification of Identity;

Right to Deal;

Other Prescribed Requirements; and

to retain any evidence required by the Duty Authority.

5


3 WHY IS EVIDENCE REQUIRED TO BE RETAINED?

Evidence is required to be retained in order to demonstrate that the transaction was

completed in accordance with legislative and other requirements and the certifications

required were accurately made. Refer to MPR Guidance Note #3: Certifications.

Evidence may be required to be provided to the Registrar for the purpose of monitoring

compliance with legislative and other requirements. Under the Electronic Conveyancing

National Law, the Registrar may conduct a compliance examination either as a result of

receiving a request or complaint from any person or on the Registrar’s own initiative. The

Registrar may conduct a compliance examination for the purpose of ascertaining whether

or not the Participation Rules have been complied with or investigating any suspected or

alleged case of misconduct.

If there is a dispute that arises in relation to a conveyancing transaction a Subscriber may

need to demonstrate in Court proceedings that the transaction was completed in

accordance with legislative and other requirements. For example, evidence that

reasonable steps were undertaken to verify the identity of a client and their right to deal

may be required. Refer to MPR Guidance Note #2: Verification of Identity and MPR

Guidance Note #4: Right to Deal.

4 WHEN MUST EVIDENCE BE RETAINED?

Evidence must be retained whenever a conveyancing transaction is undertaken. It must

be retained for at least 7 years from the date of lodgment of the registry instrument or

document.

Evidence supporting the registry instrument is that which is required to demonstrate the

validity of the conveyancing transaction. This will be what is required for a paper

instrument, with the addition of the Client Authorisation and verification of identity

evidence (if not currently kept). The evidence required is evidence which should be

obtained as part of the process of undertaking the conveyancing transaction in

accordance with prudent practice. A Subscriber is not required to seek additional

supporting evidence.

There may be cases where there is little supporting evidence, for example for a discharge

of mortgage lodged by the mortgagee. In this case there may only be the mortgagor’s

request for a discharge.

The following evidence must be retained:


4.1 Client Authorisation

The Client Authorisation and any evidence supporting that Client Authorisation must be

retained. Refer to MPR Guidance Note #1: Client Authorisation.

Where there is a Client Authorisation and it is for a batch of conveyancing transactions the

Client Authorisation is required to be kept for at least 7 years from the last conveyancing

transaction lodged with the Land Registry. Similarly for a standing Client Authorisation it

will need to be kept for at least 7 years from the last conveyancing transaction lodged with

the Land Registry before the standing authority was revoked or expired.

4.2 Verification of Identity

Any evidence supporting that reasonable steps were taken to verify the identity of the

client, mortgagor, person to whom a certificate of title was provided, signer or Subscriber

administrator (as applicable) must be retained. If the Verification of Identity Standard was

used this evidence must demonstrate that the procedure for the Verification of Identity

Standard was followed. If alternative reasonable steps were used to verify identity the

evidence must show what these steps were. Refer to MPR Guidance Note #2:

Verification of Identity.

4.3 Right to Deal

Any evidence supporting a party’s right to enter into the conveyancing transaction must be

retained. Refer to MPR Guidance Note #4: Right to Deal.

Evidence supporting a party’s right to enter into a conveyancing transaction may include

but is not limited to originals, copies or records of: a current local government rates notice,

current utility bills for the property, a current land tax assessment notice for the property,

loan documentation, the mortgage granted by the mortgagor (if one exists), the contract

of sale for the property, the certificate of title/duplicate certificate of title for the property (if

one exists) and/or a recently issued registration confirmation statement for the property .

4.4 Other Prescribed Requirement

Any evidence that demonstrates compliance with relevant legislation and other prescribed

requirements must be retained. Prescribed requirements detail policies, procedures and

requirements of the Registrar in the respective jurisdiction. Examples of prescribed

requirements include but are not limited to notices to Land Registry customers, practice

manuals and practice directions. What type of evidence is required to be retained is

dependent on the type of transaction but may include statutory declarations, trust deeds,

agency agreements or evidence of death.


5 HOW IS EVIDENCE TO BE RETAINED?

Evidence could be electronic or paper evidence. It could be stored electronically and/or in

paper. It could be stored by the Subscriber and/or an agent on a Subscriber’s behalf.

However, the medium and means in which documents supporting the conveyancing

transaction are to be retained is to be determined by a Subscriber in light of the possible

need to produce the evidence to a Court and any privacy obligations they are required to

abide by. Evidence should be accessible, legible, and safely and securely stored

whichever medium is used.


Q1: Does the Evidence certification include all correspondence, emails and

telephone attendance notes?

A1: Evidence should be kept which is sufficient to support the requirements and the

validity of the conveyancing transaction.

For example, if the correspondence, emails or telephone notes support that

reasonable steps were taken to verify the right to deal of the transacting party, they

should be kept.

Q2: Can evidence be retained electronically?

A2: Yes. Evidence can be stored electronically. However, the medium and means in

which documents supporting the conveyancing transaction are to be retained is to

be determined by the Subscriber in light of the possible need to produce those

documents as evidence to a Court.

__________

1 ARNECC MPR Version 3 Guidance Note #6: Compliance Examinations – Updated March 2017


COMPLIANCE EXAMINATIONS

1. INTRODUCTION


• what a compliance examination is;

• why compliance examination is necessary;

• when a compliance examination will be conducted; and

• how a compliance examination will be conducted.

This guide does not constitute legal advice nor does it replace prudent conveyancing practice. Nothing written in this guide overrides the Electronic Conveyancing National Law, Participation Rules, any other relevant legislation or Registrar’s prescribed requirements.

2. WHAT IS A COMPLIANCE EXAMINATION?

Section 33 of the Electronic Conveyancing National Law provides the Registrar in each

jurisdiction with the power to undertake a compliance examination for the purpose of

ascertaining whether or not the Participation Rules have been complied with; or

investigating any suspected or alleged case of misconduct by a Subscriber (including a

former Subscriber).

Under section 34 of the Electronic Conveyancing National Law a Subscriber is obliged to

cooperate fully in a compliance examination and comply with any reasonable requirement

by the person conducting the compliance examination.

Schedule 5 of the Participation Rules sets out a procedure for the conduct of a compliance

examination. The procedure is outlined further in Section 5 below.

6


3. WHY IS A COMPLIANCE EXAMINATION NECESSARY?

A key objective of the Subscriber Compliance Program is to ensure the program assists

Subscribers in meeting their obligations and responsibilities under the Participation Rules

and to build trust and confidence in the electronic lodgement network.

4. WHEN WILL A COMPLIANCE EXAMINATION BE CONDUCTED?

Subscribers will be generally selected at random for compliance examination.

Priority will be given to conducting compliance examination on Subscribers:

• who are newly registered;

• who have never been subject to a compliance examination;

• whose last or previous compliance examination(s) demonstrated non-compliance with

the Participation Rules or misconduct with respect to the use of an electronic

lodgement network;

• who have been the subject of a notification to the Registrar.

Targeted compliance examinations will also be conducted where the Registrar identifies

any potential threat to the operation, security or integrity of the electronic lodgement network

or the titles register. For example:

• past instances of non-compliance with the Participation Rules; or

• the Registrar identifying a problem with a registry instrument or conveyancing

transaction during the examination of a registry instrument.

5. HOW WILL A COMPLIANCE EXAMINATION BE CONDUCTED?

Schedule 5 of the Participation Rules outlines the procedure for the conduct of a compliance

examination (the compliance examination procedure). The compliance examination

procedure is reflected in the information below.

5.1 Notice

A Subscriber will receive a notice including a Subscriber checklist (see Appendix) from the

Registrar.

The notice will:

• identify the registry instruments for which the compliance examination will be

conducted;

• request that the Subscriber provide documents and/or information that demonstrate

the Subscriber’s compliance with the Participation Rules including, the following:


client authorisation (refer to Model Participation Rules Guidance Note # 1: Client

Authorisation);

verification of identity (refer to Model Participation Rules Guidance Note # 2:

Verification of Identity);

verification of the right to deal (refer to Model Participation Rules Guidance Note

# 4: Right to Deal);

supporting evidence (refer to Model Participation Rules Guidance Note # 5:

Retention of evidence).

• state a time, no less than 10 business days after the giving of the notice, within which

the documents and/or information must be provided to the Registrar.

• outline how the documents and/or information must be provided to the Registrar.

Subscribers should be aware that if they fail, without reasonable excuse, to comply with the

notice the Registrar may suspend the Subscriber.

5.2 Examination by the Registrar

The Registrar will initially conduct a desktop examination of the documents and/or

information provided by the Subscriber for the registry instruments identified to determine

whether the Subscriber has complied with the relevant Participation Rules. The desktop

examination will, as a minimum, include the following:

• Client Authorisation form:

correct form and version used;

client details match the lodged registry instrument(s);

transaction details match the lodged registry instrument(s);

correctly signed by the client / client agent;

correctly signed by the Subscriber or its agent;

form completed including date;

form signed by the client/client agent at the time verification of identity is

conducted. If not:

- evidence of the steps taken to ensure form signed by the client/client agent provided;

- that evidence is satisfactory; evidence of reasonable steps taken to verify the authority of each person

entering into a client authorisation on behalf of a client to both bind the client to

the client authorisation and to the conveyancing transaction(s) the subject of the

client authorisation;

form signed by the client/client agent before the Subscriber digitally signed the

registry instruments or other electronic documents.


• Verification of identity: verification of identity has been undertaken for all applicable persons outlined

in Participation Rule 6.5.1;

evidence of the steps taken to verify identity provided;

evidence matches the client details in the lodged registry instruments(s) and (if

applicable) the titles register;

reasonable steps appear to have been taken;

timing of verification of identity in relation to the signing of the registry

instrument(s) is satisfactory.

• Verification of the right to deal: evidence of the steps taken to verify right to deal provided;

evidence matches the client details in the lodged registry instruments(s) and (if

applicable) the titles register;

reasonable steps appear to have been taken;

timing of verification of right to deal in relation to the signing of any client

authorisation form is satisfactory;

timing of verification of right to deal in relation to the signing of the lodged

dealing(s) is satisfactory.

• Supporting evidence (other than supporting evidence required above):

any evidence required by the duty authority provided and satisfactory;

any evidence required by statute or prescribed requirements provided and

satisfactory;

copy of any mortgage granted by mortgagor provided;

mortgage granted by mortgagor on same terms as that of the lodged registry

instrument;

mortgage granted by mortgagor correctly signed and executed.

Subscribers should refer to the relevant Model Participation Rules guidance note for further

guidance regarding compliance with the Participation Rules for each of the above.

5.3 Outcome of Compliance Examination

The Subscriber will be notified of the outcome of the compliance examination in writing

within 10 business days of the completion of the compliance examination. The outcome

will be one of the following:

• notification that the compliance examination revealed compliance with the

Participation Rules and accordingly no further action is required; or

• notification that the compliance examination revealed non-compliance with the

Participation Rules and notification of the next steps, for example:


details of actions required to be taken to remedy the non-compliance with the

Participation Rules; or

that a site visit is required and a proposed date and time, more than ten business

days after the date of the notification, for the site visit to occur.

If the compliance examination results in the Registrar knowing or having reasonable

grounds to suspect/believe that a Suspension Event or Termination Event has occurred,

the Suspension and Termination Procedure in Schedule 7 of the Participation Rules may

commence.

6. FREQUENTLY ASKED QUESTIONS

Q1: As a Subscriber who operates nationally, will each jurisdiction follow the same approach in undertaking compliance examinations?

A1: The Australian Registrars’ National Electronic Conveyancing Council has developed

a Subscriber Compliance Program so that compliance examinations are co-ordinated

and conducted consistently across all operating jurisdictions in accordance with this

Guidance Note.

___________


Appendix

SUBSCRIBER COMPLIANCE EXAMINATION CHECKLIST

Registry Instrument / Document:

Client Authorisation

☐ Copy of Client Authorisation provided

☐ Evidence provided of the steps taken to ensure form signed by the Client/Client Agent

☐ Evidence provided of steps taken to verify the authority of each Person entering into a Client Authorisation on behalf of a Client to both bind the Client to the Client Authorisation and to the Conveyancing Transaction(s) the subject of the Client Authorisation

Verification of Identity

☐ Evidence provided of the steps taken to verify identity of the Client(s) and/or the mortgagor(s)

Verification of Right to Deal

☐ Evidence provided of the steps taken to verify right to deal of the Client(s) and/or the mortgagor(s)

Supporting evidence Copies of all supporting evidence provided including:

☐ Any evidence required by the Duty Authority

☐ If applicable, copy of any mortgage granted by mortgagor

☐ Any evidence required by Prescribed Requirements

I certify that the documents and/or information provided in accordance with this checklist are to the Subscriber's knowledge, information and belief correct, complete and not false or misleading.

Name: Subscriber Name: Signature: Date:

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