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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
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
VOI – why, when, how | RACV Club | 2 March 2016 Page 2 of 8
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.
VOI – why, when, how | RACV Club | 2 March 2016 Page 3 of 8
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.
VOI – why, when, how | RACV Club | 2 March 2016 Page 4 of 8
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.
VOI – why, when, how | RACV Club | 2 March 2016 Page 5 of 8
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:
……………………………….……………………………….…………………………….
……………………………….……………………………….…………………………….
……………………………….……………………………….…………………………….
VOI – why, when, how | RACV Club | 2 March 2016 Page 6 of 8
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.
Ruling Number: R3500
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.
VOI – why, when, how | RACV Club | 2 March 2016 Page 7 of 8
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.
Ruling Number: R4054
Category: Privilege/confidentiality * Crime/fraud
Area of Law: Criminal
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.
Ruling Number: R4071
Category: Trust account * Crime/fraud * Solicitor as witness
Area of Law: Criminal
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:
VOI – why, when, how | RACV Club | 2 March 2016 Page 8 of 8
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
2 ARNECC MPR Version 3 Guidance Note #1: Client Authorisation – Published September 2015
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
3 ARNECC MPR Version 3 Guidance Note #1: Client Authorisation – Published September 2015
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.
4 ARNECC MPR Version 3 Guidance Note #1: Client Authorisation – Published September 2015
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:
6 ARNECC MPR Version 3 Guidance Note #1: Client Authorisation – Published September 2015
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.
7 ARNECC MPR Version 3 Guidance Note #1: Client Authorisation – Published September 2015
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
MODEL PARTICIPATION RULES GUIDANCE NOTE
VERIFICATION OF IDENTITY
1 INTRODUCTION
This guidance note aligns with Version 3 of the Model Participation Rules and explains:
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.
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 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
2 ARNECC MPR Version 3 Guidance Note #2: Verification of Identity – Updated January 2016
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.
3 ARNECC MPR Version 3 Guidance Note #2: Verification of Identity – Updated January 2016
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
4 ARNECC MPR Version 3 Guidance Note #2: Verification of Identity – Updated January 2016
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.
5 ARNECC MPR Version 3 Guidance Note #2: Verification of Identity – Updated January 2016
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.
6 ARNECC MPR Version 3 Guidance Note #2: Verification of Identity – Updated January 2016
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
7 ARNECC MPR Version 3 Guidance Note #2: Verification of Identity – Updated January 2016
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
8 ARNECC MPR Version 3 Guidance Note #2: Verification of Identity – Updated January 2016
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;
9 ARNECC MPR Version 3 Guidance Note #2: Verification of Identity – Updated January 2016
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.
6 FREQUENTLY ASKED QUESTIONS
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.
10 ARNECC MPR Version 3 Guidance Note #2: Verification of Identity – Updated January 2016
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
11 ARNECC MPR Version 3 Guidance Note #2: Verification of Identity – Updated January 2016
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
12 ARNECC MPR Version 3 Guidance Note #2: Verification of Identity – Updated January 2016
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?
A9: 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?
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?
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 teacher, lecturer, employer, doctor, nurse or
police officer?
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.
Q10: A person who lives in a remote aboriginal community is buying land. How
should a Subscriber determine what may constitute reasonable steps?
A10: In this situation some matters the Subscriber may consider in deciding what steps to
take to verify their client’s identity may include:
Is this an existing client?
13 ARNECC MPR Version 3 Guidance Note #2: Verification of Identity – Updated January 2016
Will you take your own reasonable steps or seek to apply the Verification of
Identity Standard?
Can the verification of identity be undertaken face-to-face? If yes, by whom?
If not, how can it be undertaken?
What forms of identification are available?
Is there enough other evidence to apply the Verification of Identity Standard?
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 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
circumstances of the individual case. Ultimately, this would be determined by a
Court on an objective basis.
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?
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, how can it be undertaken?
What forms of identification are available?
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?
If you wish to apply the Verification of Identity Standard and the client has
limited identification documents is there someone who could provide an
14 ARNECC MPR Version 3 Guidance Note #2: Verification of Identity – Updated January 2016
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
circumstances of the individual case. Ultimately, this would be determined by a
Court on an objective basis.
__________
15 ARNECC MPR Version 3 Guidance Note #2: Verification of Identity – Updated January 2016
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,
16 ARNECC MPR Version 3 Guidance Note #2: Verification of Identity – Updated January 2016
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.
17 ARNECC MPR Version 3 Guidance Note #2: Verification of Identity – Updated January 2016
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
MODEL PARTICIPATION RULES GUIDANCE NOTE
CERTIFICATIONS
1 INTRODUCTION
This guidance note aligns with Version 3 of the Model Participation Rules and explains:
what certifications are;
why certifications are required;
when certifications are required; and
how certifications are given.
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 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
2 ARNECC MPR Version 3 Guidance Note #3: Certifications – Published September 2015
# 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.
3 ARNECC MPR Version 3 Guidance Note #3: Certifications – Published September 2015
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
Applicant – self-represented 3 and 4
Subscriber representing applicant 3 and 4
Withdrawal of Settlement Notice
Applicant – self-represented 3 and 4
Subscriber representing applicant 1, 2, 3 and 4
Administrative Notice to convert and nominate a Certificate of Title
(Victoria Only)
Subscriber 6
4 ARNECC MPR Version 3 Guidance Note #3: Certifications – Published September 2015
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
5 ARNECC MPR Version 3 Guidance Note #3: Certifications – Published September 2015
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.
6 FREQUENTLY ASKED QUESTIONS
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?
6 ARNECC MPR Version 3 Guidance Note #3: Certifications – Published September 2015
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
MODEL PARTICIPATION RULES GUIDANCE NOTE
RIGHT TO DEAL
1 INTRODUCTION
This guidance note aligns with Version 3 of the Model Participation Rules and explains:
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.
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 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
2 ARNECC MPR Version 3 Guidance Note #4: Right to Deal – Published December 2015
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
3 ARNECC MPR Version 3 Guidance Note #4: Right to Deal – Published December 2015
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.
4 ARNECC MPR Version 3 Guidance Note #4: Right to Deal – Published December 2015
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?
5 ARNECC MPR Version 3 Guidance Note #4: Right to Deal – Published December 2015
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
6 ARNECC MPR Version 3 Guidance Note #4: Right to Deal – Published December 2015
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.
6 FREQUENTLY ASKED QUESTIONS
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
MODEL PARTICIPATION RULES GUIDANCE NOTE
RETENTION OF EVIDENCE
1 INTRODUCTION
This guidance note aligns with Version 3 of the Model Participation Rules and explains:
what evidence retention is;
why evidence is required to be retained;
when evidence must be retained; and
how evidence is to be retained.
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 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.
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2 ARNECC MPR Version 3 Guidance Note #5: Retention of Evidence – Published December 2015
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:
3 ARNECC MPR Version 3 Guidance Note #5: Retention of Evidence – Published December 2015
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.
4 ARNECC MPR Version 3 Guidance Note #5: Retention of Evidence – Published December 2015
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.
6 FREQUENTLY ASKED QUESTIONS
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.
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1 ARNECC MPR Version 3 Guidance Note #6: Compliance Examinations – Updated March 2017
MODEL PARTICIPATION RULES GUIDANCE NOTE
COMPLIANCE EXAMINATIONS
1. INTRODUCTION
This guidance note aligns with Version 3 of the Model Participation Rules and explains:
• 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.
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2 ARNECC MPR Version 3 Guidance Note #6: Compliance Examinations – Updated March 2017
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:
3 ARNECC MPR Version 3 Guidance Note #6: Compliance Examinations – Updated March 2017
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.
4 ARNECC MPR Version 3 Guidance Note #6: Compliance Examinations – Updated March 2017
• 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:
5 ARNECC MPR Version 3 Guidance Note #6: Compliance Examinations – Updated March 2017
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.
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6 ARNECC MPR Version 3 Guidance Note #6: Compliance Examinations – Updated March 2017
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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