18A ELNO required to establish and maintain interoperability
(1) A person approved as an ELNO under section 15 must, in accordance
with the operating requirements, establish and maintain
interoperability between the ELN operated by the person and each
ELN operated by another ELNO.
(2) The Registrar may waive compliance with the interoperability
requirement if the Registrar is satisfied that granting the waiver is
reasonably necessary in all the circumstances.
(3) A waiver under subsection (2) may—
(a) be total or partial, and
(b) apply to particular persons approved as an ELNO under
section 15 or particular classes of those persons, and
(c) apply generally or be limited in its application by reference to
specified exceptions or factors, and
(d) apply indefinitely or for a specified period, and
(e) be unconditional or subject to conditions or restrictions.
19 Renewal of approval as ELNO
(1) The Registrar may renew an approval of a person as an ELNO under
section 15 if the Registrar is satisfied that the person meets the
qualifications for renewal of 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 Registrar may exercise the powers in
section 16 to attach conditions to the approval or vary or revoke
conditions attached to the approval.
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20 Revocation or suspension of approval as ELNO
The Registrar 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
(1) The Registrar 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
(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,
(a1) changes in the control 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 the ELN operated by the ELNO,
and
(ii) requiring participation agreements to incorporate the
participation rules,
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(c) interoperability, including, without limitation—
(i) requiring an ELNO to enter into agreements with other
ELNOs with respect to interoperability, and
(ii) specifying matters to be dealt with, and standard provisions
to be included, in those agreements, and
(iii) the resolution of disputes between an ELNO and other
ELNOs relating to interoperability,
(c1) the technical and operational requirements for an ELN,
including, without limitation, data standards and other
requirements relating to interoperability, for example, data
standards with respect to associated financial transactions,
(c2) the integration of an ELN with other electronic systems,
(c3) the separation of services provided by the ELN operated by an
ELNO from other services provided by the ELNO,
(c4) fees and charges payable to an ELNO, including, without
limitation, principles relating to—
(i) the setting and publication of fees and charges, and
(ii) the apportionment of liability to pay fees and charges, and
(iii) the circumstances in which fees and charges are not
payable,
(c5) the resolution of disputes between an ELNO and subscribers to
the ELN operated by the ELNO or clients of those subscribers,
(c6) participation by an ELNO in a scheme for an industry code
relating to associated financial transactions and compliance by
an ELNO with that code,
(d) the insurance cover to be held by an ELNO,
(e) the circumstances in which the Registrar may suspend or revoke
the approval of a person as an ELNO,
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(f) the giving of directions to an ELNO by the Registrar, for
example a direction to restrict, suspend or terminate a
subscriber’s or other person’s use of the ELN operated by the
ELNO.
23 Participation rules
(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,
(c) the circumstances in which a subscriber’s authority to use the
ELN may be restricted, suspended or terminated,
(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.
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24 Registrar to have regard to nationally agreed model
operating requirements and participation rules
(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 Law, 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
(1) An operating requirement or a participation rule—
(a) is a disallowable instrument; and
(b) must be notified at least 20 business days before the requirement
or rule commences.
Note A disallowable instrument must be notified, and presented to the
Legislative Assembly, under the Legislation Act.
(2) However, if the Registrar is satisfied that an operating requirement or
a participation rule must be made urgently because an emergency
situation exists, the requirement or rule—
(a) may state that because of an emergency situation the
requirement or rule commences on a stated day before the end
of the 20 business days; and
(b) commences on the stated day.
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(3) For subsection (2), an emergency situation exists if the Registrar
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 land titles system is being,
or is likely to be, jeopardised.
(4) If an operating requirement or a participation rule is notified less than
20 business days before its proposed commencement and
subsection (2) does not apply—
(a) the requirement or rule is valid; but
(b) it commences on the 20th business day after its notification day.
26 Subscribers required to comply with participation rules
(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, the Registrar
may:
(a) if the Registrar operates the ELN, restrict, suspend or terminate
the subscriber’s use of the ELN, or
(b) if an ELNO operates the ELN, 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 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.
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27 Waiving compliance with operating requirements or
participation rules
(1) The Registrar may waive compliance with all or any provisions of the
operating requirements or participation rules if the Registrar is
satisfied that granting the waiver is reasonable in all the
circumstances.
(2) 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
(c) apply generally or be limited in its application by reference to
specified exceptions or factors, 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 Registrar
(1) A person who is the subject of any of the following decisions (an
appellable decision) may require the Registrar to provide, in writing,
the grounds for the decision:
(a) a decision by the Registrar to refuse to approve the person as an
ELNO,
(b) a decision by the Registrar to refuse to renew the person’s
approval as an ELNO,
(c) a decision by the Registrar to suspend the person’s approval as
an ELNO,
(d) a decision by the Registrar to revoke the person’s approval as an
ELNO,
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(e) a decision by the Registrar 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 Registrar to restrict, suspend or terminate the
person’s use, as a subscriber, of an ELN operated by the
Registrar,
(g) a decision by 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 Registrar under
subsection (1) or otherwise may appeal against the decision to the
responsible tribunal.
29 Determination of appeal
(1) After hearing the appeal, the responsible tribunal may:
(a) confirm the appellable decision, or
(b) amend the appellable decision, or
(c) substitute another decision for the appellable decision.
(2) In amending the appellable decision or substituting another decision
for the appellable decision, the responsible tribunal has the same
powers as the Registrar under this Law.
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30 Costs
(1) The responsible tribunal may make any order about costs it considers
appropriate for the proceedings under this Division.
(2) This section does not apply if the responsible tribunal has power
under another law of this jurisdiction to make an order about costs for
proceedings under this Division.
31 Relationship with Act establishing responsible tribunal
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
In this Division:
ELNO includes a former ELNO.
subscriber includes a former subscriber.
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33 Compliance examinations
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 any of the following purposes:
(i) ascertaining whether or not the operating requirements are
being, or have been, complied with,
(ia) ascertaining whether or not the interoperability
requirement is being, or has been, complied with,
(ii) investigating any suspected or alleged case of misconduct
with respect to the operation of an ELN, or
(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.
34 Obligation to cooperate with examination
(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
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(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 may take any action that the Registrar is
authorised to take under the operating requirements and that the
Registrar 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
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(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 Law, 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
(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, and
(iii) another registrar.
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(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.
(4) The Registrar may refer a matter to an appropriate authority despite
any law of this jurisdiction relating to privacy or confidentiality.
(4) If the Registrar refers a matter to an appropriate authority, the
Registrar may give the appropriate authority any information held by
the Registrar that is reasonably relevant to the matter.
36 Land titles legislation not limited
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.
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Part 4 Miscellaneous