Electronic Conveyancing Act 2014 (Western Australia)

CrestWestern Australia

Electronic Conveyancing Act 2014

Western Australia

Electronic Conveyancing Act 2014

Contents

Part 1 — Preliminary

Short title 2
Commencement 2
Terms used 2
Interpretation generally 7
Exclusion of interpretation legislation of this jurisdiction 7

6A. Numbering 7

Purpose 8

7A. Act binds the State 8

Part 2 — Electronic conveyancing

Division 1 — Electronic lodgment

Documents may be lodged electronically (cf. ECNL s. 7) 9
Registrar, Commissioner or Authority to process documents lodged electronically (cf. ECNL s. 8) 9
Status of electronic registry instruments (cf. ECNL s. 9) 9

Division 2 — Client authorisations and digital signatures

Subdivision 1 — Client authorisations

Client authorisations (cf. ECNL s. 10) 10
Effect of client authorisation (cf. ECNL s. 11) 11

Subdivision 2 — Digital signatures

Reliance on, and repudiation of, digital signatures (cf. ECNL s. 12) 11

Part 3 — Electronic Lodgment Networks

Division 1 — Preliminary

Electronic Lodgment Network (cf. ECNL s. 13) 14

Division 2 — Operation of Electronic Lodgment Networks

Authority may provide and operate ELN (cf. ECNL s. 14) 14
Authority may approve ELNO to provide and operate ELN (cf. ECNL s. 15) 14
Conditions of approval as ELNO (cf. ECNL s. 16) 15
Effect of approval as ELNO (cf. ECNL s. 17) 15
ELNO required to comply with operating requirements (cf. ECNL s. 18) 15
Renewal of approval as ELNO (cf. ECNL s. 19) 15
Revocation or suspension of approval as ELNO (cf. ECNL s. 20) 16
Monitoring of activities in ELN (cf. ECNL s. 21) 16

Division 3 — Operating requirements and participation rules

Operating requirements for ELNOs (cf. ECNL s. 22) 16
Participation rules (cf. ECNL s. 23) 17
Registrar to have regard to nationally agreed model operating requirements and participation rules (cf. ECNL s. 24) 18
Publication of operating requirements and participation rules (cf. ECNL s. 25) 18
Subscribers required to comply with participation rules (cf. ECNL s. 26) 19
Waiving compliance with operating requirements or participation rules (cf. ECNL s. 27) 20

Division 4 — Appeals

Appeal against decisions of Authority or Registrar (cf. ECNL s. 28) 21
Determination of appeal (cf. ECNL s. 29) 22

30A. Responsible tribunal to consider Government policy relating to ELNOs 22

Costs (cf. ECNL s. 30) (not used) 23
Relationship with Act establishing responsible tribunal (cf. ECNL s. 31) 23

Division 5 — Compliance examinations

Definitions (cf. ECNL s. 32) 23
Compliance examinations (cf. ECNL s. 33) 23
Obligation to cooperate with examination (cf. ECNL s. 34) 24
Registrar may refer matter to appropriate authority (cf. ECNL s. 35) 26
Land titles legislation not limited (cf. ECNL s. 36) 26

Part 4 — Miscellaneous

Division 1 — Delegation

Delegation (cf. ECNL s. 37) 27

Division 2 — Liability of Authority, Registrar and Commissioner

No obligation to monitor ELN or conduct compliance examination (cf. ECNL s. 38) 27
No compensation (cf. ECNL s. 39) 27
Authority and Registrar not responsible for additional services provided by ELNO (cf. ECNL s. 40) 28

Division 3 — Relationship with other laws

Other laws relating to electronic transactions not affected (cf. ECNL s. 41) 28
Powers may be exercised for purposes of this Act (cf. ECNL s. 42) 28

Part 5 — General

Notification, tabling and disallowance of operating requirements and participation rules 29
Proof of operating requirements and participation rules 30
Giving false or misleading information, answer or document an offence 30
Regulations 32
Review of Act 32

Schedule 1 — Miscellaneous provisions relating to interpretation

Part 1 — Preliminary

Displacement of Schedule by contrary intention 34

Part 2 — General

Act to be construed not to exceed legislative power of Legislature 34
Every section to be a substantive enactment 34
Material that is, and is not, part of this Act 34
References to particular Acts and to enactments 35
References taken to be included in Act citation etc. 35
Interpretation best achieving Act’s purpose 36
Use of extrinsic material in interpretation 36
Effect of change of drafting practice 38
Use of examples 38
Compliance with forms 38

Part 3 — Terms and references

Terms used 39
Provisions relating to defined terms and gender and number 43
Meaning of “may” and “must” etc. 43
Words and expressions used in statutory instruments 43
Effect of express references to bodies corporate and individuals 43
Production of records kept in computers etc. 44
References to this jurisdiction to be implied 44
References to officers and holders of offices 44
Reference to certain provisions of Act 45
Reference to provisions of this Act or an Act is inclusive 46

Part 4 — Functions and powers

Performance of statutory functions 46
Power to make instrument or decision includes power to amend or repeal 46
Matters for which statutory instruments may make provision 47
Presumption of validity and power to make 48
Appointments may be made by name or office 48
Acting appointments 49
Powers of appointment imply certain incidental powers 50
Delegation of functions 51
Exercise of powers before commencement 53

Part 5 — Distance, time and age

Matters relating to distance, time and age 55

Part 6 — Effect of repeal, amendment or expiration

Time of Act ceasing to have effect 56
Repealed Act provisions not revived 56
Saving of operation of repealed Act provisions 57
Continuance of repealed provisions 57
Act and amending Acts to be read as one 57

Part 7 — Instruments under Act

Schedule applies to statutory instruments 57

Notes

Compilation table 59

Other notes 59

Defined terms

Western Australia

Electronic Conveyancing Act 2014

An Act to —

provide for electronic conveyancing in Western Australia by enacting provisions that correspond to the Electronic Conveyancing National Law; and
make consequential and other amendments to the Duties Act 2008, Settlement Agents Act 1981, Taxation Administration Act 2003 and Transfer of Land Act 1893 1,

and for related purposes.

Part 1 — Preliminary

1. Short title

This is the Electronic Conveyancing Act 2014.

2. Commencement

This Act comes into operation as follows —

(a) Part 1 (other than sections 3 to 7A) — on the day on which this Act receives the Royal Assent;

(b) the following provisions — on the day after that day —

(i) sections 3 to 7A;

(ii) Parts 3 to 5;

(iii) Schedule 1;

3. Terms used

(1) In this Act —

ARNECC means the Australian Registrars’ National Electronic Conveyancing Council established by the Intergovernmental Agreement;

associated financial transaction means a transaction of a financial nature that is associated with a conveyancing transaction;

Examples for this definition:

The payment of the purchase price for the sale and purchase of an interest in land.
The advancing of money in return for the granting of a mortgage or charge over an interest in land.
The payment of any tax, duty (for example, stamp duty), fee or charge payable in respect of the conveyancing transaction.

Authority means the Western Australian Land Information Authority established by the Land Information Authority Act 2006 section 5;

client authorisation has the meaning given in section 10;

Commissioner means the Commissioner of Titles under the Transfer of Land Act 1893 section 5;

compliance examination has the meaning given in section 33;

conveyancing transaction means a transaction that involves one or more parties and the purpose of which is —

(a) to create, transfer, dispose of, mortgage, charge, lease or deal with in any other way an estate or interest in land; or

(b) to get something registered, noted or recorded in the titles register; or

corresponding law —

(a) means a law of a jurisdiction that corresponds to the ECNL; and

(b) includes a law of a jurisdiction that is prescribed by regulations made under this Act as a corresponding law;

digitally sign, in relation to an electronic communication or a document, means create a digital signature for the communication or document;

digital signature means encrypted electronic data intended for the exclusive use of a particular person as a means of identifying that person as the sender of an electronic communication or the signer of a document;

Electronic Conveyancing National Law or ECNL means the law set out in the Appendix to the Electronic Conveyancing (Adoption of National Law) Act 2012 (NSW) as that Appendix is in force from time to time;

ELN means Electronic Lodgment Network — see section 13;

ELNO means Electronic Lodgment Network Operator — see section 15;

Intergovernmental Agreement means the Intergovernmental Agreement for a National Electronic Conveyancing Law between the State of New South Wales, the State of Victoria, the State of Queensland, the State of Western Australia, the State of South Australia, the State of Tasmania and the Northern Territory of Australia, that came into operation on 21 November 2011 and as in force from time to time;

jurisdiction means State;

land titles legislation —

(a) means these Acts —

(ia) the Community Titles Act 2018;

(i) the Licensed Surveyors Act 1909;

(ii) the Strata Titles Act 1985;

(iii) the Transfer of Land Act 1893;

(iv) any other Act prescribed by regulations made under this Act for the purposes of this definition;

and

(b) includes any subsidiary legislation (as defined in the Interpretation Act 1984 section 5) made under any of those Acts; and

(c) also includes any other written law (as defined in the Interpretation Act 1984 section 5) that authorises, permits or requires something —

(i) to be lodged for registration, noting or recording in the titles register; or

(ii) to be registered, noted or recorded in the titles register;

and

(d) also includes any Commonwealth Act (as defined in the Interpretation Act 1984 section 5) that authorises, permits or requires something —

(i) to be lodged for registration, noting or recording in the titles register; or

(ii) to be registered, noted or recorded in the titles register;

and

(e) also includes any legislative instrument (within the meaning of the Legislative Instruments Act 2003 2 (Commonwealth)) made under any Commonwealth Act to which paragraph (d) applies;

law, in relation to a Territory, means a law of, or in force in, that Territory;

law of this jurisdiction includes the principles and rules of common law and equity to the extent that they have effect in this jurisdiction from time to time;

lodge includes deposit, present and file;

operating requirements means the requirements determined under section 22;

participating jurisdiction means a jurisdiction that is a party to the Intergovernmental Agreement and in which —

(a) the ECNL applies as a law of the jurisdiction, either with or without modifications; or

(b) there is a corresponding law;

participation agreement, in relation to an ELN, means —

(a) if an ELNO provides and operates the ELN, an agreement between the ELNO and another person under which the other person is authorised to use that ELN; or

(b) if the Authority provides and operates the ELN, an agreement between the Authority and another person under which the other person is authorised to use that ELN;

participation rules means the rules determined under section 23;

Registrar means the Registrar of Titles under the Transfer of Land Act 1893 section 7;

registry instrument means —

(a) any document that may be lodged under the land titles legislation for the purpose of —

(i) creating, transferring, disposing of, mortgaging, charging, leasing or dealing with in any other way an estate or interest in land; or

(ii) getting something registered, noted or recorded in the titles register; or

(iii) getting the registration, note or record of something in the titles register changed, withdrawn or removed;

(b) a document that belongs to a class of document that —

(i) may be lodged under the land titles legislation; and

(ii) is prescribed by regulations made under this Act for the purposes of this definition;

responsible tribunal means the State Administrative Tribunal established under the State Administrative Tribunal Act 2004;

State includes a Territory;

subscriber means a person who is authorised under a participation agreement to use an ELN to complete conveyancing transactions on behalf of another person or on their own behalf;

Territory means the Australian Capital Territory or the Northern Territory of Australia;

this jurisdiction means the State of Western Australia;

titles register means —

(a) the Register referred to in the Transfer of Land Act 1893 section 48; or

(b) any register, database or system that —

(i) under another Act is a titles register for the purposes of this definition; or

(ii) is prescribed by regulations made under this Act or another Act for the purposes of this definition.

(2) A term used in this Act (other than Parts 5 to 9) or a statutory instrument and also in the land titles legislation has the same meaning in this Act (other than Parts 5 to 9) or the statutory instrument as it has in that legislation, unless —

(a) the term is defined in this Act or the statutory instrument; or

(b) the context requires otherwise.

[Section 3 amended: No. 32 of 2018 s. 208.]

4. Interpretation generally

Schedule 1 applies in relation to this Act (other than Parts 5 to 9).

5. Exclusion of interpretation legislation of this jurisdiction

The Interpretation Act 1984 does not apply to —

(a) this Act (other than Parts 5 to 9); or

(b) the instruments made under this Act (other than regulations made under section 46).

6A. Numbering

(1) This Act is numbered in order to maintain consistent numbering between the provisions of Parts 2 to 4 of the ECNL and the corresponding provisions of Parts 2 to 4.

(2) A section in Parts 2 to 4 that corresponds to a section of the ECNL includes in its heading a reference to “ECNL” together with a reference to the corresponding ECNL provision.

(3) If the ECNL includes a section that is not required in Parts 2 to 4, the section number and heading appearing in the ECNL are included in Parts 2 to 4 even though the body of the section is omitted.

(4) Schedule 1 corresponds to Schedule 1 to the ECNL.

6. Purpose

(1) The purpose of this Act is to provide for electronic conveyancing in Western Australia by enacting provisions that correspond to the Electronic Conveyancing National Law and in that way achieve the object of that Law.

(2) The object of the Electronic Conveyancing National Law is to promote efficiency throughout Australia in property conveyancing by providing a common legal framework that —

(a) enables documents in electronic form to be lodged and processed under the land titles legislation of each participating jurisdiction; but

(b) does not derogate from the fundamental principles of the Torrens system of land title as incorporated in the land titles legislation of each participating jurisdiction, such as indefeasibility of title.

7A. Act binds the State

(1) This Act binds the State.

(2) In this section —

State means the Crown in right of this jurisdiction, and includes —

(a) the Government of this jurisdiction; and

(b) a Minister of the Crown in right of this jurisdiction; and

Part 2 — Electronic conveyancing

Division 1 — Electronic lodgment

7. Documents may be lodged electronically (cf. ECNL s. 7)

(1) A document may be lodged electronically for the purposes of the land titles legislation if the document is lodged —

(a) in a form approved by the Registrar; and

(b) by means of an ELN provided and operated under this Act.

(2) An approval for the purposes of subsection (1)(a) may be given under the land titles legislation or in some other way that the Registrar considers appropriate.

8. Registrar, Commissioner or Authority to process documents lodged electronically (cf. ECNL s. 8)

(1) If a document is lodged electronically in accordance with section 7, the Registrar, the Commissioner or the Authority (whichever is appropriate) must receive and process the document in accordance with the land titles legislation.

(2) This section does not limit or affect the need for the document to comply with the requirements of the land titles legislation, this Act or any other law of this jurisdiction.

9. Status of electronic registry instruments (cf. ECNL s. 9)

(1) A registry instrument that is in a form in which it can be lodged electronically under section 7 has the same effect as if that instrument were in the form of a paper document.

(2) A registry instrument that is digitally signed by a subscriber in accordance with the participation rules applicable to that instrument has the same effect as if a paper document having the equivalent effect had been executed by —

(a) if the subscriber signs under a client authorisation, each person for whom the subscriber signs in accordance with the client authorisation; or

(b) the subscriber in any other case.

(3) If a registry instrument is digitally signed in accordance with the participation rules applicable to that instrument —

(a) the instrument is to be taken to be in writing for the purposes of every other law of this jurisdiction; and

(b) the requirements of any other law of this jurisdiction relating to the execution, signing, witnessing, attestation or sealing of documents must be regarded as having been fully satisfied.

Division 2 — Client authorisations and digital signatures

Subdivision 1 — Client authorisations

10. Client authorisations (cf. ECNL s. 10)

(1) A client authorisation is a document —

(a) that is in the form required by the participation rules; and

(b) by which a party to a conveyancing transaction authorises a subscriber to do one or more things on that party’s behalf in connection with the transaction so that the transaction, or part of the transaction, can be completed electronically.

(2) The following are examples of the things that a client authorisation may authorise a subscriber to do —

(a) to digitally sign registry instruments or other documents;

(b) to present registry instruments or other documents for lodgment electronically;

11. Effect of client authorisation (cf. ECNL s. 11)

(1) A properly completed client authorisation —

(a) has effect according to its terms; and

(b) is not a power of attorney for the purposes of any other law of this jurisdiction relating to powers of attorney.

(2) If a client authorisation is properly completed, the requirements of any other law of this jurisdiction relating to the execution, signing, witnessing, attestation or sealing of documents must be regarded as having been fully satisfied.

(3) Subsections (1) and (2) do not limit or affect the application of any law of this jurisdiction relating to powers of attorney in relation to —

(a) the execution of a client authorisation under a power of attorney; or

(b) a client authorisation executed under a power of attorney.

Subdivision 2 — Digital signatures

12. Reliance on, and repudiation of, digital signatures (cf. ECNL s. 12)

(1) If a subscriber’s digital signature is created for a registry instrument or other document in connection with a conveyancing transaction, then —

(a) unless that subscriber repudiates that digital signature, that registry instrument or other document is to be taken to be signed by that subscriber; and

(b) unless that subscriber repudiates that digital signature, that digital signature is binding, in relation to that registry instrument or other document, on —

(i) that subscriber; and

(ii) all other persons (if any) for whom that subscriber acts under a client authorisation with respect to that conveyancing transaction;

and

(c) unless that subscriber repudiates that digital signature, that digital signature is binding, in relation to that registry instrument or other document, for the benefit of —

(i) each of the parties to that conveyancing transaction; and

(ii) each subscriber who acts under a client authorisation with respect to that conveyancing transaction; and

(iii) any person claiming through or under any person to whom subparagraph (i) applies; and

(iv) the Authority, the Registrar and the Commissioner, once that registry instrument or other document is lodged electronically in accordance with section 7;

and

(d) that subscriber cannot repudiate that digital signature except in the circumstances set out in subsection (4).

(2) Subsection (1) applies regardless of —

(a) who created the subscriber’s digital signature; and

(b) the circumstances (including fraud) in which the subscriber’s digital signature was created.

(3) Subsection (1) does not prevent the unsigning of a registry instrument or other document.

(4) Despite subsections (1) and (2), a subscriber can repudiate the subscriber’s digital signature with respect to a registry instrument or other document if the subscriber establishes —

(a) that the digital signature was not created by the subscriber; and

(b) that the digital signature was not created by a person who, at the time the subscriber’s digital signature was created for the registry instrument or other document —

(i) was an employee, agent, contractor or officer (however described) of the subscriber; and

(ii) had the subscriber’s express or implied authority to create the subscriber’s digital signature for any document or documents;

and

(c) that neither of the following enabled the subscriber’s digital signature to be created for the registry instrument or other document —

(i) a failure by the subscriber, or any of the subscriber’s employees, agents, contractors or officers, to fully comply with the requirements of the participation rules;

(ii) a failure by the subscriber, or any of the subscriber’s employees, agents, contractors or officers, to take reasonable care.

(5) For the purposes of subsection (4)(b)(ii), it does not matter whether the authority was —

(a) general; or

(b) limited or restricted to documents of a particular class or to a particular document or in any other way.

Part 3 — Electronic Lodgment Networks

Division 1 — Preliminary

13. Electronic Lodgment Network (cf. ECNL s. 13)

(1) An Electronic Lodgment Network (ELN) is an electronic system that enables the lodging of registry instruments and other documents in electronic form for the purposes of the land titles legislation.

(2) An ELN may also enable the preparation of registry instruments and other documents in electronic form for lodging under the land titles legislation.

Division 2 — Operation of Electronic Lodgment Networks

14. Authority may provide and operate ELN (cf. ECNL s. 14)

The Authority may provide and operate an ELN.

15. Authority may approve ELNO to provide and operate ELN (cf. ECNL s. 15)

(1) The Authority may approve a person as an Electronic Lodgment Network Operator (ELNO) to provide and operate an ELN.

(2) The Authority must not approve a person under this section unless the person meets the qualifications for approval set out in the operating requirements.

(3) An approval under this section must be in writing and must state the period for which it is to have effect.

(4) The Authority may grant more than one approval under this section.

16. Conditions of approval as ELNO (cf. ECNL s. 16)

(1) The Authority may attach conditions to an approval under section 15, and those conditions must be specified in the approval.

(2) The Authority may at any time, by notice in writing to the ELNO, vary or revoke the conditions attached to the approval of that ELNO or attach new or additional conditions.

17. Effect of approval as ELNO (cf. ECNL s. 17)

(1) A person who is approved as an ELNO under section 15 may provide and operate an ELN —

(a) for the period stated in the approval; and

(b) subject to the conditions (if any) attached to the approval; and

(2) Subsection (1) is subject to sections 19 and 20.

(3) In performing functions as an ELNO, a person approved under section 15 is not and does not represent the State, and is not an agent of the State.

(4) The approval of a person as an ELNO does not restrict or prevent the provision, by that person, of services additional to those provided by the ELN.

(5) Subsection (4) is subject to the operating requirements.

18. ELNO required to comply with operating requirements (cf. ECNL s. 18)

A person approved as an ELNO under section 15 must comply with the operating requirements.

19. Renewal of approval as ELNO (cf. ECNL s. 19)

(1) The Authority may renew an approval of a person as an ELNO under section 15 if the Authority is satisfied that the person continues to meet the qualifications for approval set out in the operating requirements.

(2) The renewal of an approval under this section must be in writing and must state the period for which the renewal is to have effect.

(3) In renewing an approval, the Authority may exercise the powers in section 16 to attach conditions to the approval or vary or revoke conditions attached to the approval.

20. Revocation or suspension of approval as ELNO (cf. ECNL s. 20)

The Authority may revoke or suspend the approval of a person as an ELNO in the circumstances set out in the operating requirements.

21. Monitoring of activities in ELN (cf. ECNL s. 21)

(1) The Authority, the Registrar and the Commissioner or any of them may monitor activities in an ELN for any purpose, including (without limitation) for the purpose of maintaining the integrity of the titles register.

(2) This section does not limit Division 5.

Division 3 — Operating requirements and participation rules

22. Operating requirements for ELNOs (cf. ECNL s. 22)

(1) The Registrar may determine, in writing, requirements (operating requirements) relating to —

(a) the operation of an ELNO; and

(b) the provision and operation, by an ELNO, of an ELN.

(2) The operating requirements may (without limitation) include provisions relating to the following matters —

(a) the financial standing of an ELNO;

(b) compliance with the participation rules, including (without limitation) —

(i) requiring an ELNO to use a participation agreement when authorising persons to use an ELN; and

(ii) requiring participation agreements to incorporate the participation rules;

(d) the insurance cover to be held by an ELNO;

(e) the circumstances in which the Authority may suspend or revoke the approval of a person as an ELNO;

(f) the giving of directions to an ELNO by the Authority or the Registrar, for example a direction to restrict, suspend or terminate a subscriber’s or other person’s use of an ELN.

23. Participation rules (cf. ECNL s. 23)

(1) The Registrar may determine, in writing, rules relating to the use of an ELN (participation rules).

(2) The participation rules may (without limitation) include provisions relating to the following matters —

(a) the eligibility criteria for subscribers;

(b) the obligations of subscribers, including (without limitation) any representations or warranties they are required to give;

(d) client authorisations;

(e) the obligations of subscribers to verify the identity of their clients;

(f) the certification of registry instruments and other documents for use in connection with the ELN;

(g) digital signing;

(h) the retention of documents created or obtained in connection with a subscriber’s use of an ELN;

(i) compliance by subscribers with the participation rules, including (without limitation) how subscribers demonstrate compliance with the rules, the procedures for notifying non‑compliance and how non‑compliance may be remedied.

24. Registrar to have regard to nationally agreed model operating requirements and participation rules (cf. ECNL s. 24)

(1) In this section —

model provisions means any model operating requirements or model participation rules from time to time developed and published by ARNECC.

(2) In determining operating requirements and participation rules under this Act, and in determining changes to those requirements or rules, the Registrar must have regard to the desirability of maintaining consistency with any model provisions.

25. Publication of operating requirements and participation rules (cf. ECNL s. 25)

(1) The Registrar must ensure that the following are publicly available —

(a) the current operating requirements and participation rules;

(b) all superseded versions of the operating requirements and participation rules.

(2) The operating requirements and participation rules, and any changes to either of them, must be made publicly available at least 20 business days before the operating requirements or participation rules or, as the case requires, the changes to them take effect.

(3) However, changes to the operating requirements or participation rules may take effect within a shorter period (including immediately on being made publicly available), if the Registrar is satisfied that the changes need to take effect urgently because an emergency situation exists.

(4) For the purposes of subsection (3), an emergency situation exists if the Authority, the Registrar or the Commissioner considers that, because of the occurrence of an event or the existence of particular circumstances, the operation, security, integrity or stability of an ELN or the titles register or the land titles system is being, or is likely to be, jeopardised.

(5) Documents may be made publicly available in accordance with this section in any manner the Registrar considers appropriate, including (without limitation) by means of a website.

(6) It is sufficient compliance with subsection (1)(b) if a superseded version of the operating requirements or participation rules (other than the most recently superseded version) is publicly available only on request made to the Registrar.

26. Subscribers required to comply with participation rules (cf. ECNL s. 26)

(1) A subscriber who is authorised under a participation agreement to use an ELN must comply with the participation rules relating to that ELN.

(2) If a subscriber contravenes those participation rules —

(a) if the Authority operates the ELN, the Authority may restrict, suspend or terminate the subscriber’s use of the ELN;

(b) if an ELNO operates the ELN, the Authority or the Registrar may direct the ELNO to restrict, suspend or terminate the subscriber’s use of the ELN.

(3) Subsection (2) does not limit or affect any right, power, authority or remedy that the Authority, the Registrar or an ELNO has under the operating requirements, the participation rules, a participation agreement or any other law of this jurisdiction in relation to contravention of the participation rules.

27. Waiving compliance with operating requirements or participation rules (cf. ECNL s. 27)

(1) The Authority or the Registrar may waive compliance with all or any provisions of the operating requirements if the Authority or, as the case requires, the Registrar is satisfied that granting the waiver is reasonable in all the circumstances.

(2) The Registrar may waive compliance with all or any provisions of the participation rules if the Registrar is satisfied that granting the waiver is reasonable in all the circumstances.

(3) A waiver under this section may —

(a) be total or partial; and

(b) apply generally to all persons, or be limited in its application to particular persons or particular classes of persons; and

(d) apply indefinitely or for a specified period; and

(e) be unconditional or subject to conditions or restrictions.

Division 4 — Appeals

28. Appeal against decisions of Authority or Registrar (cf. ECNL s. 28)

(1) A person who is the subject of any of the following decisions (an appellable decision) may require the Authority or the Registrar (whichever is the decision‑maker) to provide, in writing, the grounds for the decision —

(a) a decision by the Authority to refuse to approve the person as an ELNO;

(b) a decision by the Authority to refuse to renew the person’s approval as an ELNO;

(d) a decision by the Authority to revoke the person’s approval as an ELNO;

(e) a decision by the Authority to attach a condition to the person’s approval as an ELNO, or to vary or revoke a condition of the person’s approval as an ELNO, if the attachment, variation or revocation of the condition is done without the person’s agreement;

(f) a decision by the Authority to restrict, suspend or terminate the person’s use, as a subscriber, of an ELN operated by the Authority;

(g) a decision by the Authority or the Registrar to direct an ELNO to restrict, suspend or terminate the person’s use, as a subscriber, of the ELN operated by the ELNO.

(2) A person who is the subject of an appellable decision and who has received written grounds for the decision from the Authority or the Registrar under subsection (1) or otherwise may appeal against the decision to the responsible tribunal.

29. Determination of appeal (cf. ECNL s. 29)

(1) After hearing the appeal, the responsible tribunal may —

(a) confirm the appellable decision; or

(b) amend the appellable decision; or

(2) In amending the appellable decision or substituting another decision for the appellable decision, the responsible tribunal has the same powers as the Authority or, as the case requires, the Registrar under this Act.

30A. Responsible tribunal to consider Government policy relating to ELNOs

(1) This section applies to an appeal to the responsible tribunal against a decision referred to in section 28(1)(b).

(2) The State Administrative Tribunal Act 2004 section 28 (section 28) applies to and in relation to an appeal to which this section applies as if a direction given to the Authority under the Land Information Authority Act 2006 section 65 were a statement of policy of the kind referred to in section 28.

(3) However, subsection (2) does not apply unless, at the time of the decision to which the appeal relates, the direction had been —

(a) either —

(i) laid before each House of Parliament in accordance with the Land Information Authority Act 2006 section 65(2); or

(ii) dealt with under section 91 of that Act;

and

(b) published in the Gazette, even though this is not required by that Act.

Note for this section:

There is no equivalent to this section in the ECNL.

30. Costs (cf. ECNL s. 30) (not used)

31. Relationship with Act establishing responsible tribunal (cf. ECNL s. 31)

This Division —

(a) applies despite any provision to the contrary of the Act that establishes or continues the responsible tribunal; but

(b) does not otherwise limit —

(i) that Act; or

(ii) any rules, regulations or other instrument regulating the practice or procedure of the responsible tribunal.

Division 5 — Compliance examinations

32. Definitions (cf. ECNL s. 32)

In this Division —

ELNO includes a former ELNO;

subscriber includes a former subscriber.

33. Compliance examinations (cf. ECNL s. 33)

(1) The Registrar may, on receiving a request or complaint from any person or on the Registrar’s own initiative, conduct an investigation (compliance examination) under this Part —

(a) in relation to an ELNO for either or both of the following purposes —

(i) ascertaining whether or not the operating requirements are being, or have been, complied with;

(ii) investigating any suspected or alleged case of misconduct with respect to the operation of an ELN;

(b) in relation to a subscriber for either or both of the following purposes —

(i) ascertaining whether or not the participation rules are being, or have been, complied with;

(ii) investigating any suspected or alleged case of misconduct with respect to the use of an ELN.

(2) If the Authority or the Commissioner requests the Registrar to conduct a compliance examination, the Registrar must conduct a compliance examination in accordance with that request.

34. Obligation to cooperate with examination (cf. ECNL s. 34)

(1) An ELNO or a subscriber in relation to whom a compliance examination is being conducted must cooperate fully with the person conducting the compliance examination for the purpose of ensuring that the person is able to conduct a proper compliance examination.

(2) In particular, an ELNO or a subscriber must comply with any reasonable requirement by the person conducting the compliance examination —

(a) to furnish specified information or to produce specified documents for the purposes of the compliance examination; or

(b) to take specified action for the purposes of the compliance examination.

(3) If an ELNO fails, without reasonable excuse, to cooperate as required by this section, the Registrar or the Authority, or both, may take any action that the Registrar or, as the case requires, the Authority is authorised to take under the operating requirements and that the Registrar or, as the case requires, the Authority considers appropriate, which may include (without limitation) the suspension or revocation of the ELNO’s approval under section 20.

(4) If a subscriber fails, without reasonable excuse, to cooperate as required by this section, the Registrar may take any action that the Registrar is authorised to take under the operating requirements, the participation rules or the land titles legislation and that the Registrar considers appropriate.

(5) For the purposes of subsections (3) and (4), it is not a reasonable excuse for a person to fail to give stated information, answer a question or to produce a document that giving the information, answering the question or producing the document might tend to incriminate the person or make the person liable to a penalty.

(6) However, the following is not admissible in evidence against an individual in a criminal proceeding —

(a) information provided by an individual in compliance with a requirement made under this section;

(b) an answer given by an individual in response to a question asked under this section;

(c) a document produced by an individual in compliance with a requirement made under this section (other than a document to which subsection (7) applies);

(d) information directly or indirectly derived from —

(i) information mentioned in paragraph (a); or

(ii) an answer mentioned in paragraph (b); or

(iii) a document mentioned in paragraph (c) (other than a document to which subsection (7) applies).

(7) A document produced by an individual in compliance with a requirement made under this section is not inadmissible in evidence against the individual in a criminal proceeding on the ground that the document might incriminate the individual if the document is required to be kept under this Act, the land titles legislation, the operating requirements or the participation rules.

(8) Subsection (6) does not apply to —

(a) a proceeding about the false or misleading nature of anything in the information, answer or document; or

(b) a proceeding in which the false or misleading nature of the information, answer or document is relevant evidence.

35. Registrar may refer matter to appropriate authority (cf. ECNL s. 35)

(1) In this section —

appropriate authority —

(a) means a person, body or organisation who or which is empowered by a law of this jurisdiction or of another State or the Commonwealth to take investigatory, disciplinary or other action; and

(b) includes (without limiting paragraph (a)) —

(i) a law enforcement agency; and

(ii) a regulatory or disciplinary body for persons engaged in any profession, occupation, calling or business.

(2) Instead of conducting a compliance examination in relation to a matter, or at any time during a compliance examination or after the completion of a compliance examination in relation to a matter, the Registrar may refer the matter to an appropriate authority.

(3) If the Registrar refers a matter to an appropriate authority, the Registrar is not obliged to take any other action in relation to the matter.

36. Land titles legislation not limited (cf. ECNL s. 36)

Nothing in this Division limits or affects any provision of the land titles legislation that authorises or permits any investigation, inquiry or examination of any kind.

Part 4 — Miscellaneous

Division 1 — Delegation

37. Delegation (cf. ECNL s. 37)

(1) The Authority, the Registrar or the Commissioner may delegate to any other person the power conferred by section 21 to monitor activities in an ELN.

(2) The Registrar may delegate to any other person any function under Part 3 Division 5.

Division 2 — Liability of Authority, Registrar and Commissioner

38. No obligation to monitor ELN or conduct compliance examination (cf. ECNL s. 38)

(1) Neither the Authority nor the Registrar nor the Commissioner is obliged to monitor activities in an ELN under section 21.

(2) The Registrar is not obliged to conduct or complete a compliance examination under Part 3 Division 5.

(3) Subsection (2) is subject to section 33(2).

39. No compensation (cf. ECNL s. 39)

No person is entitled to receive compensation for any loss or damage arising out of anything done or omitted in good faith in, or in connection with, the monitoring of activities in an ELN under section 21 or the conduct of a compliance examination under Part 3 Division 5, including (without limitation) —

(a) any decision made, in good faith, not to monitor activities in an ELN or not to conduct a compliance examination; and

(b) any decision made, in good faith, as to how activities in an ELN are to be monitored or how a compliance examination is to be conducted.

40. Authority and Registrar not responsible for additional services provided by ELNO (cf. ECNL s. 40)

The mere fact that an ELNO provides services that are additional to those provided by the ELN operated by that ELNO does not make the Authority or the Registrar responsible for the regulation or operation of those additional services.

Division 3 — Relationship with other laws

41. Other laws relating to electronic transactions not affected (cf. ECNL s. 41)

This Act is in addition to, and not in substitution for —

(a) the laws of this jurisdiction in relation to electronic transactions; and

(b) any other law of this jurisdiction that authorises or permits the use of electronic documents for the purposes of the land titles legislation.

42. Powers may be exercised for purposes of this Act (cf. ECNL s. 42)

If any provision of the land titles legislation empowers the making of an instrument of a legislative or administrative character, or the doing of any other act or thing, that power is to be construed (with all necessary changes) as including a general power to make instruments of that character, or to do that act or thing, for the purposes of this Act.

Part 5 — General

Note for this Part:

There is no equivalent to this Part in the ECNL.

43. Notification, tabling and disallowance of operating requirements and participation rules

(1) In this section —

business day means a day that is not —

(a) a Saturday or Sunday; or

(b) a public holiday in the metropolitan region (as defined in the Planning and Development Act 2005 section 4(1)).

(2) This section applies to the following documents —

(a) operating requirements;

(b) participation rules;

(3) Where any document to which this section applies is made publicly available in accordance with section 25, the Registrar must, within 10 business days after the day on which the document is first made publicly available, cause to be published in the Gazette notice of —

(a) the making of the document; and

(b) where the document is publicly available.

(4) If notification of the making of a document to which this section applies is not published in the Gazette in accordance with subsection (3), the document ceases to have effect on the expiry of the 10th business day after the day on which the document was first made publicly available, but without affecting the validity or curing the invalidity of anything done or of the omission of anything in the meantime.

(5) A copy of a document to which this section applies must be laid before each House of Parliament within 6 sitting days following notification of the making of the document in the Gazette in accordance with subsection (3).

(6) If notification of the making of a document to which this section applies is published in the Gazette, the Interpretation Act 1984 section 42 applies as if the document were a regulation published in the Gazette.

44. Proof of operating requirements and participation rules

(1) In any proceedings in any court or before any person acting judicially, a copy of all or part of any operating requirements or participation rules appearing to be certified by the Registrar to be a true copy of those requirements or rules as at any date or during any period is sufficient evidence of those requirements or, as the case requires, those rules as at that date or during that period in the absence of proof to the contrary.

(2) The Registrar must make certified copies of the operating requirements and participation rules available on request and payment of the prescribed fee (if any).

45. Giving false or misleading information, answer or document an offence

(1) In this section —

authorised person means —

(a) the Authority; or

(b) the Registrar; or

(d) any person to whom any function of the Authority, the Registrar or the Commissioner is delegated under this Act or any other Act.

(2) A person must not do any of the things set out in subsection (4) under —

(a) this Act; or

(b) an instrument (as defined in Schedule 1 clause 12(1)) made under this Act.

Penalty: imprisonment for 10 years and a fine of $100 000.

Summary conviction penalty: imprisonment for 3 years and a fine of $40 000.

(3) An offence under subsection (2) is a crime.

(4) The things to which subsection (2) applies are —

(a) giving to an authorised person any information or answer that the person giving the information or answer knows —

(i) is false or misleading in a material particular; or

(ii) omits any matter or thing without which the information or answer is misleading;

(b) producing to an authorised person any document that the person producing the document knows to be false or misleading in a material particular.

(5) It is a defence to a charge of an offence under subsection (2) that involves doing the thing set out in subsection (4)(b) if the accused proves that, when producing the document to an authorised person, the accused either —

(a) indicated the respect in which the document was false or misleading and, where practicable, provided correct information; or

(b) accompanied the document with a written certificate —

(i) stating that the document was, to the accused’s knowledge, false or misleading in a material particular; and

(ii) setting out, or referring to, the material particular in which the document was, to the accused’s knowledge, false or misleading.

46. Regulations

(1) The Governor may make regulations prescribing all matters that are required or permitted by this Act to be prescribed, or are necessary or convenient to be prescribed for giving effect to the purposes of this Act.

(2) If a regulation made under this section is inconsistent with any subsidiary legislation made under the land titles legislation, the regulation made under this section prevails to the extent of the inconsistency.

47. Review of Act

(1) The Minister must carry out a review of the operation and effectiveness of this Act —

(a) as soon as is practicable after the period of 7 years beginning on the day on which section 7 comes into operation (the review period); or

(b) at any earlier time that the Minister considers appropriate.

(2) The Minister must —

(a) prepare a report based on the review; and

(b) cause the report to be laid before each House of Parliament as soon as is practicable after it is prepared, but in any event —

(i) if the review is carried out after the review period, not more than 12 months after that period; or

(ii) if the review is carried out earlier than that, not more than 6 months after the review is completed.

[Part 6 (s. 48-55) omitted under the Reprints Act 1984 s. 7(4)(e).]

[Part 7 (s. 56-58) omitted under the Reprints Act 1984 s. 7(4)(e).]

[Part 8 (s. 59-60) omitted under the Reprints Act 1984 s. 7(4)(e).]

[Part 9 (s. 61-95) omitted under the Reprints Act 1984 s. 7(4)(e).]

Schedule 1 — Miscellaneous provisions relating to interpretation

[s. 4]

Part 1 — Preliminary

Displacement of Schedule by contrary intention

The application of this Schedule may be displaced, wholly or partly, by a contrary intention appearing in this Act.

Part 2 — General

Act to be construed not to exceed legislative power of Legislature

(1) This Act is to be construed as operating to the full extent of, but so as not to exceed, the legislative power of the Legislature of this jurisdiction.

(2) If a provision of this Act, or the application of a provision of this Act to a person, subject matter or circumstance, would, but for this clause, be construed as being in excess of the legislative power of the Legislature of this jurisdiction —

(a) it is a valid provision to the extent to which it is not in excess of the power; and

(b) the remainder of this Act, and the application of the provision to other persons, subject matters or circumstances, is not affected.

(3) This clause applies to this Act in addition to, and without limiting the effect of, any provision of this Act.

Every section to be a substantive enactment

Every section of this Act has effect as a substantive enactment without introductory words.

Material that is, and is not, part of this Act

(1) The heading to a Part, Division or Subdivision into which this Act is divided is part of this Act.

(2) A Schedule to this Act is part of this Act.

(3) Punctuation in this Act is part of this Act.

(4) A heading to a section or subsection of this Act does not form part of this Act.

(5) Notes included in this Act (including footnotes and endnotes) do not form part of this Act.

References to particular Acts and to enactments

In this Act —

(a) an Act of this jurisdiction may be cited —

(i) by its short title; or

(ii) by reference to the year in which it was passed and its number;

and

(b) a Commonwealth Act may be cited —

(i) by its short title; or

(ii) in another way sufficient in a Commonwealth Act for the citation of such an Act,

together with a reference to the Commonwealth; and

(i) by its short title; or

(ii) in another way sufficient in an Act of the jurisdiction for the citation of such an Act,

together with a reference to the jurisdiction.

References taken to be included in Act citation etc.

(1) A reference in this Act to an Act includes a reference to —

(a) the Act as originally enacted, and as amended from time to time since its original enactment; and

(b) if the Act has been repealed and re‑enacted (with or without modification) since the enactment of the reference, the Act as re‑enacted, and as amended from time to time since its re‑enactment.

(2) A reference in this Act to a provision of this Act or of an Act includes a reference to —

(a) the provision as originally enacted, and as amended from time to time since its original enactment; and

(b) if the provision has been omitted and re‑enacted (with or without modification) since the enactment of the reference, the provision as re‑enacted, and as amended from time to time since its re‑enactment.

(3) Subclauses (1) and (2) apply to a reference in this Act to a law of the Commonwealth or another jurisdiction as they apply to a reference in this Act to an Act and to a provision of an Act.

Interpretation best achieving Act’s purpose

(1) In the interpretation of a provision of this Act, the interpretation that will best achieve the purpose or object of this Act is to be preferred to any other interpretation.

(2) Subclause (1) applies whether or not the purpose is expressly stated in this Act.

Use of extrinsic material in interpretation

(1) In this clause —

extrinsic material means relevant material not forming part of this Act, including, for example —

(a) material that is set out in the document containing the text of this Act as printed by the Government Printer; and

(b) a relevant report of a Royal Commission, Law Reform Commission, commission or committee of inquiry, or a similar body, that was laid before the Parliament of this jurisdiction before the provision concerned was enacted; and

(c) a relevant report of a committee of the Parliament of this jurisdiction that was made to the Parliament before the provision was enacted; and

(d) a treaty or other international agreement that is mentioned in this Act; and

(e) an explanatory note or memorandum relating to the Bill that contained the provision, or any relevant document, that was laid before, or given to the members of, the Parliament of this jurisdiction by the member bringing in the Bill before the provision was enacted; and

(f) the speech made to the Parliament of this jurisdiction by the member in moving a motion that the Bill be read a second time; and

(g) material in the Votes and Proceedings of the Parliament of this jurisdiction or in any official record of debates in the Parliament of this jurisdiction; and

(h) a document that is declared by this Act to be a relevant document for the purposes of this clause;

ordinary meaning means the ordinary meaning conveyed by a provision having regard to its context in this Act and to the purpose of this Act.

(2) Subject to subclause (3), in the interpretation of a provision of this Act, consideration may be given to extrinsic material capable of assisting in the interpretation —

(a) if the provision is ambiguous or obscure, to provide an interpretation of it; or

(b) if the ordinary meaning of the provision leads to a result that is manifestly absurd or is unreasonable, to provide an interpretation that avoids such a result; or

(3) In determining whether consideration should be given to extrinsic material, and in determining the weight to be given to extrinsic material, regard is to be had to —

(a) the desirability of a provision being interpreted as having its ordinary meaning; and

(b) the undesirability of prolonging proceedings without compensating advantage; and

Effect of change of drafting practice

If —

(a) a provision of this Act expresses an idea in particular words; and

(b) a provision enacted later appears to express the same idea in different words for the purpose of implementing a different legislative drafting practice, including, for example —

(i) the use of a clearer or simpler style; or

(ii) the use of gender neutral language,

the ideas must not be taken to be different merely because different words are used.

Use of examples

If this Act includes an example of the operation of a provision —

(a) the example is not exhaustive; and

(b) the example does not limit, but may extend, the meaning of the provision; and

(c) the example and the provision are to be read in the context of each other and the other provisions of this Act, but, if the example and the provision so read are inconsistent, the provision prevails.

Compliance with forms

(1) If a form is prescribed or approved by or for the purpose of this Act, strict compliance with the form is not necessary and substantial compliance is sufficient.

(2) If a form prescribed or approved by or for the purpose of this Act requires —

(a) the form to be completed in a specified way; or

(b) specified information or documents to be included in, attached to or given with the form; or

(c) the form, or information or documents included in, attached to or given with the form, to be verified in a specified way,

the form is not properly completed unless the requirement is complied with.

Part 3 — Terms and references

Terms used

(1) In this Act —

Act means an Act of the Legislature of this jurisdiction;

adult means an individual who is 18 or more;

affidavit, in relation to a person allowed by law to affirm, declare or promise, includes affirmation, declaration and promise;

amend includes —

(a) omit or omit and substitute; or

(b) alter or vary; or

appoint includes reappoint;

Australia means the Commonwealth of Australia but, when used in a geographical sense, does not include an external Territory;

business day means a day that is not —

(a) a Saturday or Sunday; or

(b) a public holiday, special holiday or bank holiday in the place in which any relevant act is to be or may be done;

calendar month means a period starting at the beginning of any day of one of the 12 named months and ending —

(a) immediately before the beginning of the corresponding day of the next named month; or

(b) if there is no such corresponding day, at the end of the next named month;

calendar year means a period of 12 months beginning on 1 January;

commencement, in relation to this Act or an Act or a provision of this Act or an Act, means the time at which this Act, the Act or provision comes into operation;

Commonwealth means the Commonwealth of Australia but, when used in a geographical sense, does not include an external Territory;

confer, in relation to a function, includes impose;

contravene includes fail to comply with;

country includes —

(a) a federation; or

(b) a state, province or other part of a federation;

date of assent, in relation to an Act, means the day on which the Act receives the Royal Assent;

definition means a provision of this Act (however expressed) that —

(a) gives a meaning to a word or expression; or

(b) limits or extends the meaning of a word or expression;

document means any record of information however recorded, and includes —

(a) anything on which there is writing; or

(b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; or

(d) a map, plan, drawing or photograph; or

(e) any record of information that exists in a digital form and is capable of being reproduced, transmitted, stored and duplicated by electronic means;

expire includes lapse or otherwise cease to have effect;

external Territory means a Territory, other than an internal Territory, for the government of which as a Territory provision is made by a Commonwealth Act;

fail includes refuse;

financial year means a period of 12 months beginning on 1 July;

foreign country means a country (whether or not an independent sovereign State) outside Australia and the external Territories;

function includes a power, authority or duty;

Gazette means the Government Gazette of this jurisdiction;

gazetted means published in the Gazette;

Gazette notice means notice published in the Gazette;

Government Printer means the Government Printer of this jurisdiction, and includes any other person authorised by the Government of this jurisdiction to print an Act or instrument;

individual means a natural person;

insert, in relation to a provision of this Act, includes substitute;

instrument includes a statutory instrument;

internal Territory means the Australian Capital Territory, the Jervis Bay Territory or the Northern Territory;

Jervis Bay Territory means the Territory mentioned in the Jervis Bay Territory Acceptance Act 1915 (Commonwealth);

make includes issue or grant;

minor means an individual who is under 18;

modification includes addition, omission or substitution;

month means a calendar month;

named month means one of the 12 months of the year;

Northern Territory means the Northern Territory of Australia;

number means —

(a) a number expressed in figures or words; or

(b) a letter; or

oath, in relation to a person allowed by law to affirm, declare or promise, includes affirmation, declaration or promise;

office includes position;

omit, in relation to a provision of this Act or an Act, includes repeal;

party includes an individual or a body politic or corporate;

penalty includes forfeiture or punishment;

person includes an individual or a body politic or corporate;

power includes authority;

printed includes typewritten, lithographed or reproduced by any mechanical or electronic means;

proceeding means a legal or other action or proceeding;

provision, in relation to this Act or an Act, means words or other matter that form or forms part of this Act or the Act, and includes —

(a) a Chapter, Part, Division, Subdivision, section, subsection, paragraph, subparagraph, sub‑subparagraph or Schedule of or to this Act or the Act; or

(b) a section, clause, subclause, item, column, table or form of or in a Schedule to this Act or the Act; or

record includes information stored or recorded by means of a computer;

repeal includes —

(a) revoke or rescind; or

(b) repeal by implication; or

(d) exclude from, or include in, the application of this Act or the instrument concerned any person, subject matter or circumstance;

sign includes the affixing of a seal or the making of a mark;

statutory declaration means a declaration made under an Act, or under a Commonwealth Act or an Act of another jurisdiction, that authorises a declaration to be made otherwise than in the course of a judicial proceeding;

statutory instrument means an instrument made or in force under or for the purposes of this Act, and includes an instrument made or in force under any such instrument;

swear, in relation to a person allowed by law to affirm, declare or promise, includes affirm, declare or promise;

word includes any symbol, figure or drawing;

writing includes any mode of representing or reproducing words in a visible form.

(2) In a statutory instrument —

the Act means this Act.

Provisions relating to defined terms and gender and number

(1) If this Act defines a word or expression, other parts of speech and grammatical forms of the word or expression have corresponding meanings.

(2) Definitions in or applicable to this Act apply except so far as the context or subject matter otherwise indicates or requires.

(3) In this Act, words indicating a gender include each other gender.

(4) In this Act —

(a) words in the singular include the plural; and

(b) words in the plural include the singular.

Meaning of “may” and “must” etc.

(1) In this Act, the word may, or a similar word or expression, used in relation to a power indicates that the power may be exercised or not exercised, at discretion.

(2) In this Act, the word must, or a similar word or expression, used in relation to a power indicates that the power is required to be exercised.

(3) This clause has effect despite any rule of construction to the contrary.

Words and expressions used in statutory instruments

(1) Words and expressions used in a statutory instrument have the same meanings as they have, from time to time, in this Act, or relevant provisions of this Act, under or for the purposes of which the instrument is made or in force.

(2) This clause has effect in relation to an instrument except so far as the contrary intention appears in the instrument.

Effect of express references to bodies corporate and individuals

In this Act, a reference to a person generally (whether the expression “person”, “party”, “someone”, “anyone”, “no‑one”, “one”, “another” or “whoever” or another expression is used) —

(a) does not exclude a reference to a body corporate or an individual merely because elsewhere in this Act there is particular reference to a body corporate (however expressed); and

(b) does not exclude a reference to a body corporate or an individual merely because elsewhere in this Act there is particular reference to an individual (however expressed).

Production of records kept in computers etc.

If a person who keeps a record of information by means of a mechanical, electronic or other device is required by or under this Act —

(a) to produce the information or a document containing the information to a court, tribunal or person; or

(b) to make a document containing the information available for inspection by a court, tribunal or person,

then, unless the court, tribunal or person otherwise directs —

(c) the requirement obliges the person to produce or make available for inspection, as the case may be, a document that reproduces the information in a form capable of being understood by the court, tribunal or person; and

(d) the production to the court, tribunal or person of the document in that form complies with the requirement.

References to this jurisdiction to be implied

In this Act —

(a) a reference to an officer, office or statutory body is a reference to such an officer, office or statutory body in and for this jurisdiction; and

(b) a reference to a locality or other matter or thing is a reference to such a locality or other matter or thing in and of this jurisdiction.

References to officers and holders of offices

In this Act, a reference to a particular officer, or to the holder of a particular office, includes a reference to the person for the time being occupying or acting in the office concerned.

Reference to certain provisions of Act

If a provision of this Act refers —

(a) to a Part, section or Schedule by a number and without reference to this Act, the reference is a reference to the Part, section or Schedule, designated by the number, of or to this Act; or

(b) to a Schedule without reference to it by a number and without reference to this Act, the reference, if there is only one Schedule to this Act, is a reference to the Schedule; or

(c) to a Division, Subdivision, subsection, paragraph, subparagraph, sub‑subparagraph, clause, subclause, item, column, table or form by a number and without reference to this Act, the reference is a reference to —

(i) the Division, designated by the number, of the Part in which the reference occurs; and

(ii) the Subdivision, designated by the number, of the Division in which the reference occurs; and

(iii) the subsection, designated by the number, of the section in which the reference occurs; and

(iv) the paragraph, designated by the number, of the section, subsection, Schedule or other provision in which the reference occurs; and

(v) the paragraph, designated by the number, of the clause, subclause, item, column, table or form of or in the Schedule in which the reference occurs; and

(vi) the subparagraph, designated by the number, of the paragraph in which the reference occurs; and

(vii) the sub‑subparagraph, designated by the number, of the subparagraph in which the reference occurs; and

(viii) the section, clause, subclause, item, column, table or form, designated by the number, of or in the Schedule in which the reference occurs,

as the case requires.

Reference to provisions of this Act or an Act is inclusive

In this Act, a reference to a portion of this Act or an Act includes —

(a) a reference to the Chapter, Part, Division, Subdivision, section, subsection or other provision of this Act or the Act referred to that forms the beginning of the portion; and

(b) a reference to the Chapter, Part, Division, Subdivision, section, subsection or other provision of this Act or the Act referred to that forms the end of the portion.

Example for this clause:

A reference to “sections 5 to 9” includes both section 5 and section 9. It is not necessary to refer to “sections 5 to 9 (both inclusive)” to ensure that the reference is given an inclusive interpretation.

Part 4 — Functions and powers

Performance of statutory functions

(1) If this Act confers a function or power on a person or body, the function may be performed, or the power may be exercised, from time to time as occasion requires.

(2) If this Act confers a function or power on a particular officer or the holder of a particular office, the function may be performed, or the power may be exercised, by the person for the time being occupying or acting in the office concerned.

(3) If this Act confers a function or power on a body (whether or not incorporated), the performance of the function, or the exercise of the power, is not affected merely because of vacancies in the membership of the body.

Power to make instrument or decision includes power to amend or repeal

If this Act authorises or requires the making of an instrument or decision —

(a) the power includes power to amend or repeal the instrument or decision; and

(b) the power to amend or repeal the instrument or decision is exercisable in the same way, and subject to the same conditions, as the power to make the instrument or decision.

Matters for which statutory instruments may make provision

(1) If this Act authorises or requires the making of a statutory instrument in relation to a matter, a statutory instrument made under this Act may make provision for the matter by applying, adopting or incorporating (with or without modification) the provisions of —

(a) an Act or statutory instrument; or

(b) another document (whether of the same or a different kind),

as in force at a particular time or as in force from time to time.

(2) If a statutory instrument applies, adopts or incorporates the provisions of a document, the statutory instrument applies, adopts or incorporates the provisions as in force from time to time, unless the statutory instrument otherwise expressly provides.

(3) A statutory instrument may —

(a) apply generally throughout this jurisdiction or be limited in its application to a particular part of this jurisdiction; or

(b) apply generally to all persons, matters or things or be limited in its application to —

(i) particular persons, matters or things; or

(ii) particular classes of persons, matters or things;

(4) A statutory instrument may —

(a) apply differently according to different specified factors; or

(b) otherwise make different provision in relation to —

(i) different persons, matters or things; or

(ii) different classes of persons, matters or things.

(5) A statutory instrument may authorise a matter or thing to be from time to time determined, applied or regulated by a specified person or body.

(6) If this Act authorises or requires a matter to be regulated by statutory instrument, the power may be exercised by prohibiting by statutory instrument the matter or any aspect of the matter.

(7) If this Act authorises or requires provision to be made with respect to a matter by statutory instrument, a statutory instrument made under this Act may make provision with respect to a particular aspect of the matter despite the fact that provision is made by this Act in relation to another aspect of the matter or in relation to another matter.

(8) A statutory instrument may provide for the review of, or a right of appeal against, a decision made under the statutory instrument, or this Act, and may, for that purpose, confer jurisdiction on any court, tribunal, person or body.

(9) A statutory instrument may require a form prescribed by or under the statutory instrument, or information or documents included in, attached to or given with the form, to be verified by statutory declaration.

Presumption of validity and power to make

(1) All conditions and preliminary steps required for the making of a statutory instrument are presumed to have been satisfied and performed in the absence of evidence to the contrary.

(2) A statutory instrument is taken to be made under all powers under which it may be made, even though it purports to be made under this Act or a particular provision of this Act.

Appointments may be made by name or office

(1) If this Act authorises or requires a person or body —

(a) to appoint a person to an office; or

(b) to appoint a person or body to exercise a power; or

the person or body may make the appointment by —

(d) appointing a person or body by name; or

(e) appointing a particular officer, or the holder of a particular office, by reference to the title of the office concerned.

(2) An appointment of a particular officer, or the holder of a particular office, is taken to be the appointment of the person for the time being occupying or acting in the office concerned.

Acting appointments

(1) If this Act authorises a person or body to appoint a person to act in an office, the person or body may, in accordance with this Act, appoint —

(a) a person by name; or

(b) a particular officer, or the holder of a particular office, by reference to the title of the office concerned,

to act in the office.

(2) The appointment may be expressed to have effect only in the circumstances specified in the instrument of appointment.

(3) The appointer may —

(a) determine the terms and conditions of the appointment, including remuneration and allowances; and

(b) terminate the appointment at any time.

(4) The appointment, or the termination of the appointment, must be in, or evidenced by, writing signed by the appointer.

(5) The appointee must not act for more than one year during a vacancy in the office.

(6) If the appointee is acting in the office otherwise than because of a vacancy in the office and the office becomes vacant, then, subject to subclause (2), the appointee may continue to act until —

(a) the appointer otherwise directs; or

(b) the vacancy is filled; or

whichever happens first.

(7) The appointment ceases to have effect if the appointee resigns by writing signed and delivered to the appointer.

(8) While the appointee is acting in the office —

(a) the appointee has all the powers and functions of the holder of the office; and

(b) this Act and other laws apply to the appointee as if the appointee were the holder of the office.

(9) Anything done by or in relation to a person purporting to act in the office is not invalid merely because —

(a) the occasion for the appointment had not arisen; or

(b) the appointment had ceased to have effect; or

(10) If this Act authorises the appointer to appoint a person to act during a vacancy in the office, an appointment to act in the office may be made by the appointer whether or not an appointment has previously been made to the office.

Powers of appointment imply certain incidental powers

(1) If this Act authorises or requires a person or body to appoint a person to an office —

(a) the power may be exercised from time to time as occasion requires; and

(b) the power includes —

(i) power to remove or suspend, at any time, a person appointed to the office; and

(ii) power to appoint another person to act in the office if a person appointed to the office is removed or suspended; and

(iii) power to reinstate or reappoint a person removed or suspended; and

(iv) power to appoint a person to act in the office if it is vacant (whether or not the office has ever been filled); and

(v) power to appoint a person to act in the office if the person appointed to the office is absent or is unable to discharge the functions of the office (whether because of illness or otherwise).

(2) The power to remove or suspend a person under subclause (1)(b) may be exercised even if this Act provides that the holder of the office to which the person was appointed is to hold office for a specified period.

(3) The power to make an appointment under subclause (1)(b) may be exercised from time to time as occasion requires.

(4) An appointment under subclause (1)(b) may be expressed to have effect only in the circumstances specified in the instrument of appointment.

Delegation of functions

(1) If this Act authorises a person or body to delegate a function, the person or body may, in accordance with this Act and any other applicable law, delegate the function to —

(a) a person or body by name; or

(b) a specified officer, or the holder of a specified office, by reference to the title of the office concerned.

(2) The delegation may be —

(a) general or limited; and

(b) made from time to time; and

(3) The delegation, or a revocation of the delegation, must be in, or evidenced by, writing signed by the delegator or, if the delegator is a body, by a person authorised by the body for the purpose.

(4) A delegated function may be exercised only in accordance with any conditions to which the delegation is subject.

(5) The delegate may, in the performance of a delegated function, do anything that is incidental to the delegated function.

(6) A delegated function that purports to have been exercised by the delegate is taken to have been properly exercised by the delegate unless the contrary is proved.

(7) A delegated function that is properly exercised by the delegate is taken to have been exercised by the delegator.

(8) If, when exercised by the delegator, a function is dependent on the delegator’s opinion, belief or state of mind, then, when exercised by the delegate, the function is dependent on the delegate’s opinion, belief or state of mind.

(9) If —

(a) the delegator is a specified officer or the holder of a specified office; and

(b) the person who was the specified officer or holder of the specified office when the delegation was made ceases to be the holder of the office,

then —

(d) the person for the time being occupying or acting in the office concerned is taken to be the delegator for the purposes of this clause.

(10) If —

(a) the delegator is a body; and

(b) there is a change in the membership of the body,

then —

(d) the body as constituted for the time being is taken to be the delegator for the purposes of this clause.

(11) If a function is delegated to a specified officer or the holder of a specified office —

(a) the delegation does not cease to have effect merely because the person who was the specified officer or the holder of the specified office when the function was delegated ceases to be the officer or the holder of the office; and

(b) the function may be exercised by the person for the time being occupying or acting in the office concerned.

(12) A function that has been delegated may, despite the delegation, be exercised by the delegator.

(13) The delegation of a function does not relieve the delegator of the delegator’s obligation to ensure that the function is properly exercised.

(14) Subject to subclause (15), this clause applies to a subdelegation of a function in the same way as it applies to a delegation of a function.

(15) If this Act authorises the delegation of a function, the function may be subdelegated only if the Act expressly authorises the function to be subdelegated.

Exercise of powers before commencement

(1) If a provision of this Act (the empowering provision) that has not commenced would, had it commenced, confer a power —

(a) to make an appointment; or

(b) to make a statutory instrument of a legislative or administrative character; or

then —

(d) the power may be exercised; and

(e) anything may be done for the purpose of enabling the exercise of the power or of bringing the appointment, instrument or other thing into effect,

before the empowering provision commences.

(2) If a provision of an Act (the empowering provision) that does not commence on its enactment would, had it commenced, amend a provision of this Act so that it would confer a power —

(a) to make an appointment; or

(b) to make a statutory instrument of a legislative or administrative character; or

then —

(d) the power may be exercised; and

(e) anything may be done for the purpose of enabling the exercise of the power or of bringing the appointment, instrument or other thing into effect,

before the empowering provision commences.

(3) If —

(a) this Act has commenced and confers a power to make a statutory instrument (the basic statutory instrument‑making power); and

(b) a provision of an Act that does not commence on its enactment would, had it commenced, amend this Act so as to confer additional power to make a statutory instrument (the additional instrument‑making power),

then —

(c) the basic instrument‑making power and the additional instrument‑making power may be exercised by making a single instrument; and

(d) any provision of the instrument that required an exercise of the additional instrument making power is to be treated as made under subclause (2).

(4) If an instrument, or a provision of an instrument, is made under subclause (1) or (2) that is necessary for the purpose of —

(a) enabling the exercise of a power mentioned in the subclause; or

(b) bringing an appointment, instrument or other thing made or done under such a power into effect,

the instrument or provision takes effect —

(d) on such later day (if any) on which, or at such later time (if any) at which, the instrument or provision is expressed to take effect.

(5) If —

(a) an appointment is made under subclause (1) or (2); or

(b) an instrument, or a provision of an instrument, made under subclause (1) or (2) is not necessary for a purpose mentioned in subclause (4),

the appointment, instrument or provision takes effect —

(d) on such later day (if any) on which, or at such later time (if any) at which, the appointment, instrument or provision is expressed to take effect.

(6) Anything done under subclause (1) or (2) does not confer a right, or impose a liability, on a person before the relevant empowering provision commences.

(7) After the enactment of a provision mentioned in subclause (2) but before the provision’s commencement, this clause applies as if the references in subclauses (2) and (5) to the commencement of the empowering provision were references to the commencement of the provision mentioned in subclause (2) as amended by the empowering provision.

(8) In the application of this clause to a statutory instrument, a reference to the enactment of the instrument is a reference to the making of the instrument.

Part 5 — Distance, time and age

Matters relating to distance, time and age

(1) In the measurement of distance for the purposes of this Act, the distance is to be measured along the shortest road ordinarily used for travelling.

(2) If a period beginning on a given day, act or event is provided or allowed for a purpose by this Act, the period is to be calculated by excluding the day, or the day of the act or event, and —

(a) if the period is expressed to be a specified number of clear days or at least a specified number of days, by excluding the day on which the purpose is to be fulfilled; and

(b) in any other case, by including the day on which the purpose is to be fulfilled.

(3) If the last day of a period provided or allowed by this Act for doing anything is not a business day in the place in which the thing is to be or may be done, the thing may be done on the next business day in the place.

(4) If the last day of a period provided or allowed by this Act for the filing or registration of a document is a day on which the office is closed where the filing or registration is to be or may be done, the document may be filed or registered at the office on the next day that the office is open.

(5) If no time is provided or allowed for doing anything, the thing is to be done as soon as possible, and as often as the prescribed occasion happens.

(6) If, in this Act, there is a reference to time, the reference is, in relation to the doing of anything in a jurisdiction, a reference to the legal time in the jurisdiction.

(7) For the purposes of this Act, a person attains an age in years at the beginning of the person’s birthday for the age.

Part 6 — Effect of repeal, amendment or expiration

Time of Act ceasing to have effect

If a provision of this Act is expressed —

(a) to expire on a specified day; or

(b) to remain or continue in force, or otherwise have effect, until a specified day,

the provision has effect until the last moment of the specified day.

Repealed Act provisions not revived

If a provision of this Act is repealed or amended by an Act, or a provision of an Act, the provision is not revived merely because the Act or the provision of the Act —

(a) is later repealed or amended; or

(b) later expires.

Saving of operation of repealed Act provisions

(1) The repeal, amendment or expiry of a provision of this Act does not —

(a) revive anything not in force or existing at the time the repeal, amendment or expiry takes effect; or

(b) affect the previous operation of the provision or anything suffered, done or begun under the provision; or

(d) affect a penalty incurred in relation to an offence arising under the provision; or

(e) affect an investigation, proceeding or remedy in relation to such a right, privilege, liability or penalty.

(2) Any such penalty may be imposed and enforced, and any such investigation, proceeding or remedy may be begun, continued or enforced, as if the provision had not been repealed or amended or had not expired.

Continuance of repealed provisions

If an Act repeals some provisions of this Act and enacts new provisions in substitution for the repealed provisions, the repealed provisions continue in force until the new provisions commence.

Act and amending Acts to be read as one

This Act and all Acts amending this Act are to be read as one.

Part 7 — Instruments under Act

Schedule applies to statutory instruments

(1) This Schedule applies to a statutory instrument, and to things that may be done or are required to be done under a statutory instrument, in the same way as it applies to this Act, and things that may be done or are required to be done under this Act, except so far as the context or subject matter otherwise indicates or requires.

(2) The fact that a provision of this Schedule refers to this Act and not also to a statutory instrument does not, by itself, indicate that the provision is intended to apply only to this Act.

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Notes

This is a compilation of the Electronic Conveyancing Act 2014 and includes amendments made by other written laws. For provisions that have come into operation, and for information about any reprints, see the compilation table.

Compilation table

Short title	Number and year	Assent	Commencement
Electronic Conveyancing Act 2014	2 of 2014	24 Mar 2014	Pt. 1 (other than s. 3-7A): 24 Mar 2014 (see s. 2(a)); s. 3-7A, Pt. 3-5 and Sch. 1: 25 Mar 2014 (see s. 2(b)); Pt. 2 and 6‑9: 3 Jun 2014 (see s. 2(c) and Gazette 30 May 2014 p. 1679)
*Reprint 1: The Electronic Conveyancing Act 2014* as at 12 May 2017** (includes amendments listed above)
Community Titles Act 2018 Pt. 14 Div. 7	32 of 2018	19 Nov 2018	30 Jun 2021 (see s. 2(b) and SL 2021/69 cl. 2)

Other notes

1 The provisions in this Act amending these Acts have been omitted under the Reprints Act 1984 s. 7(4)(e).

2 The short title of the Legislative Instruments Act 2003 (Cwlth) was changed to the Legislation Act 2003 (Cwlth) by the Acts and Instruments (Framework Reform) Act 2015 (Cwlth) Sch. 1 Pt. 1 it. 3.

Defined terms

[This is a list of terms defined and the provisions where they are defined. The list is not part of the law.]

Defined term Provision(s)

Act Sch. 1 cl. 12(1)

additional instrument‑making power Sch. 1 cl. 30(3)(b)

adult Sch. 1 cl. 12(1)

affidavit Sch. 1 cl. 12(1)

amend Sch. 1 cl. 12(1)

appellable decision 28(1)

appoint Sch. 1 cl. 12(1)

appropriate authority 35(1)

ARNECC 3(1)

associated financial transaction 3(1)

Australia Sch. 1 cl. 12(1)

authorised person 45(1)

Authority 3(1)

basic statutory instrument‑making power Sch. 1 cl. 30(3)(a)

business day 43(1), Sch. 1 cl. 12(1)

calendar month Sch. 1 cl. 12(1)

calendar year Sch. 1 cl. 12(1)

client authorisation 3(1)

commencement Sch. 1 cl. 12(1)

Commissioner 3(1)

Commonwealth Sch. 1 cl. 12(1)

compliance examination 3(1), 33(1)

confer Sch. 1 cl. 12(1)

contravene Sch. 1 cl. 12(1)

conveyancing transaction 3(1)

corresponding law 3(1)

country Sch. 1 cl. 12(1)

date of assent Sch. 1 cl. 12(1)

definition Sch. 1 cl. 12(1)

digital signature 3(1)

digitally sign 3(1)

document Sch. 1 cl. 12(1)

ECNL 3(1)

Electronic Conveyancing National Law 3(1)

ELN 3(1), 13(1)

ELNO 3(1), 15(1), 32

empowering provision Sch. 1 cl. 30(1) and (2)

expire Sch. 1 cl. 12(1)

external Territory Sch. 1 cl. 12(1)

extrinsic material Sch. 1 cl. 8(1)

fail Sch. 1 cl. 12(1)

financial year Sch. 1 cl. 12(1)

foreign country Sch. 1 cl. 12(1)

function Sch. 1 cl. 12(1)

Gazette Sch. 1 cl. 12(1)

Gazette notice Sch. 1 cl. 12(1)

gazetted Sch. 1 cl. 12(1)

Government Printer Sch. 1 cl. 12(1)

individual Sch. 1 cl. 12(1)

insert Sch. 1 cl. 12(1)

instrument Sch. 1 cl. 12(1)

Intergovernmental Agreement 3(1)

internal Territory Sch. 1 cl. 12(1)

Jervis Bay Territory Sch. 1 cl. 12(1)

jurisdiction 3(1)

land titles legislation 3(1)

law 3(1)

law of this jurisdiction 3(1)

lodge 3(1)

make Sch. 1 cl. 12(1)

may Sch. 1 cl. 14(1)

minor Sch. 1 cl. 12(1)

model provisions 24(1)

modification Sch. 1 cl. 12(1)

month Sch. 1 cl. 12(1)

must Sch. 1 cl. 14(2)

named month Sch. 1 cl. 12(1)

Northern Territory Sch. 1 cl. 12(1)

number Sch. 1 cl. 12(1)

oath Sch. 1 cl. 12(1)

office Sch. 1 cl. 12(1)

omit Sch. 1 cl. 12(1)

operating requirements 3(1), 22(1)

ordinary meaning Sch. 1 cl. 8(1)

participating jurisdiction 3(1)

participation agreement 3(1)

participation rules 3(1), 23(1)

party Sch. 1 cl. 12(1)

penalty Sch. 1 cl. 12(1)

person Sch. 1 cl. 12(1)

power Sch. 1 cl. 12(1)

printed Sch. 1 cl. 12(1)

proceeding Sch. 1 cl. 12(1)

provision Sch. 1 cl. 12(1)

record Sch. 1 cl. 12(1)

Registrar 3(1)

registry instrument 3(1)

repeal Sch. 1 cl. 12(1)

responsible tribunal 3(1)

review period 47(1)(a)

section 28 30A(2)

sign Sch. 1 cl. 12(1)

State 3(1), 7A(2)

statutory declaration Sch. 1 cl. 12(1)

statutory instrument Sch. 1 cl. 12(1)

subscriber 3(1), 32

swear Sch. 1 cl. 12(1)

Territory 3(1)

the Act Sch. 1 cl. 12 (2)

this jurisdiction 3(1)

titles register 3(1)

word Sch. 1 cl. 12(1)

writing Sch. 1 cl. 12(1)

Deep Dive

What it does

Current sections