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24 May 2016

Real Property (Electronic Conveyancing) Amendment Bill

Adjourned debate on second reading.

(Continued from 18 May 2016.)

The Hon. A.L. McLACHLAN ( 17:31 :55 ): I rise to speak to the Real Property (Electronic Conveyancing) Amendment Bill. I speak on behalf of my Liberal colleagues. I indicate that the opposition is supporting the second reading of the bill.

This bill is part of the Council of Australian Governments reform that aims to provide a single electronic conveyancing system throughout Australia. Once implemented, national electronic conveyancing will provide a common regulatory framework to enable documents in an electronic form to be lodged under the Torrens land title legislation in each state and territory. The government asserts that South Australia’s participation in national electronic conveyancing will reduce extant administration burdens and costs associated with the physical settlements and processing of paper‑based land transactions.

The bill before us is the third in a tranche of legislation to effect electronic conveyancing. I have previously spoken on behalf of the party in support of the Real Property (Priority Notices and Other Measures) Amendment Act when it was introduced in the chamber last year. That act introduced the first set of changes that are required to facilitate the introduction of national electronic conveyancing to the Real Property Act. In particular, it will introduce a statutory power to require parties to conveyancing transactions to verify their identity as well as new instruments called priority notices. Those amendments commenced on 29 April 2015.

The Electronic Conveyancing National Law South Australia Act 2013 introduced a common regulatory framework that will enable electronic documents to be lodged under Torrens land title legislation in each state and territory. That act commenced on 21 January this year. This bill before us is the last, as I have indicated, to fully implement the national electronic conveyancing system.

Not only is it asserted that it will reduce costs and delays associated with conveyancing and settling land transactions but it is also asserted that it will increase the accuracy of transactional data lodged with the land registries and hence reduce the costs of corrections. It is anticipated to also reduce the complexities and costs of dealing with land across eight different jurisdictions.

In practical terms the bill will make certain changes to our conveyancing system to facilitate a smooth transition from paper conveyancing to electronic transactions, and further avoid the complexity and cost of dealing with two separate systems.

In practical terms, some of the amendments include: broadening the certification requirements to align with the requirements for electronic conveyancing, to provide greater certainty that conveyancers, legal practitioners and mortgagees have complied with their statutory obligations, including verification of identity. It also provides for a client authorisation to be provided when a party to a transaction is authorising their solicitor or conveyancer to execute and lodge documents on their behalf. It will introduce an offence prohibiting legal practitioners or conveyancers from executing or lodging an instrument other than in accordance with the terms of a properly completed client authorisation form. It introduces amendments to permit a mortgage to be lodged without the mortgagor’s execution, where the mortgagee is represented by a legal practitioner or conveyancer.

The bill removes the requirement for the Registrar-General to issue, and for the registered proprietor to produce, duplicate certificates of title and tenant copies of crown leases, as this practice is incompatible apparently with the new system of electronic conveyancing. The bill further introduces a subscription service known as Title Watch; an alert service which will notify the subscriber by email or SMS that activities such as lodgement of a priority notice have been detected on the nominated title. It also amends the Real Property Act to expressly allow a registered proprietor to caveat their own property. The bill creates offences to accommodate the new electronic conveyancing system, such as an offence for fraudulently using a digital signature or client authorisation or false certification.

I have endeavoured to set out the more practical initiatives in this bill. I anticipate that I will have some questions in relation to the operation of the bill if it is enacted into law. It is interesting to note that there is a substantive move in all three tranches of legislation to place a greater burden on the conveyancing profession and the legal profession to certify identity. This is a significant philosophical shift in the regulation of the conveyancing of our land. The Liberal Party has formed its view to support the second reading of the speech based on the submissions of stakeholders, in particular the Law Society. I commend the bill to the chamber.

Debate adjourned on motion of Hon. G.E. Gago.

See full session on Hansard

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