ByLawyers News and Updates

Verification of identity in electronic conveyancing transactions

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Electronic conveyancing transactions require the practitioner to take reasonable steps to identify their clients, failing which the Verification of Identity Standard set out in Schedule 8 of the ARNECC Model Participation Rules should be followed.

Every party to a real property transaction must be identified.

Depending on the circumstances, simply sighting photographic identification may be enough, however the 100 point identification method used by financial institutions and government departments is more rigorous and generally accepted. Under this method, different forms of identification carry different point values, and a combination of these must collectively add up to 100 points.

Reliance on the Verification of Identity Standard under the ARNECC Model Participation Rules is recommended as best practice.

For companies and other entities, reasonable steps must be taken to verify the identity of all instructing parties and directors. An ASIC search should also be completed to confirm the entity’s existence and currency, and to ascertain the names of the current directors of a company.

For instructions under a power of attorney, or for associations and body corporates, reasonable steps must also be taken to establish the instructing party’s authority to sign.

The Verification of Identity Standard

The Verification of Identity Standard is set out in Schedule 8 of the ARNECC Model Participation Rules.

Face-to-face

The verification of identity is conducted during a face-to-face in-person interview between the verifier and the person being identified.

Where documents containing photographs are produced by the person being identified, the verifier must be satisfied that the person being identified is a reasonable likeness to the person depicted in those photographs. For example, the shape of their mouth, nose, eyes, and the position of their cheekbones.

Identification documents

The identity documents must be:

  • original;
  • current, except for an expired Australian passport which was current within the preceding two years and has not been cancelled; and
  • sighted by the subscriber or their agent.

Under the Verification of Identity Standard, identification documents are divided into ranked categories, with Category 1 documents preferred.

If the document requirements of Category 1 cannot be met, the subscriber or the subscriber agent can then consider the requirements of Category 2. If these cannot be met, then they can consider the requirements of Category 3 – and so forth.

A subscriber, usually a solicitor or conveyancer, is authorised under a participation agreement to use an electronic lodgement network to complete conveyancing transactions on behalf of another person or on their own behalf.

Australian citizens and residents

Category Minimum document requirements

1

 Australian Passport or foreign passport or Australian Evidence of Immigration Status ImmiCard or Australian Migration Status ImmiCard
plus Australian driver licence or photo card
plus change of name or marriage certificate if necessary

2

 Australian Passport or foreign passport or Australian Evidence of Immigration Status ImmiCard or Australian Migration Status ImmiCard
plus full birth certificate or citizenship certificate or descent certificate
plus Medicare or Centrelink or Department of Veterans’ Affairs card
plus change of name or marriage certificate if necessary

3

 Australian driver licence or photo card
plus full birth certificate or citizenship certificate or descent certificate
plus Medicare or Centrelink or Department of Veterans’ Affairs card
plus change of name or marriage certificate if necessary

4

 (a) Australian Passport or foreign passport or Australian Evidence of Immigration Status ImmiCard or Australian Migration Status ImmiCard
plus another form of government issued photographic identity document
plus change of name or marriage certificate if necessary

(b) Australian Passport or foreign passport or Australian Evidence of Immigration Status ImmiCard or Australian Migration Status ImmiCard
plus full birth certificate
plus another form of government issued identity document
plus change of name or marriage certificate if necessary

5

 An Identifier Declaration is available where the person cannot be identified by categories 1 to 4.

(a) Identifier Declaration
plus full birth certificate or citizenship certificate or descent certificate
plus Medicare or Centrelink or Department of Veterans’ Affairs card
plus change of name or marriage certificate if necessary

(b) Identifier Declaration by a person specified in Verification of Identity Standard paragraph 4.4(e)
plus Medicare or Centrelink or Department of Veterans’ Affairs card
plus change of name or marriage certificate if necessary
Note: Refer to Verification of Identity Standard paragraph 4.
If the person cannot be identified by categories 1 to 4

An Identifier Declaration allows the person to be identified by another person, rather than by their own personal documents.

When category 5(a) is used, the identity declarant must be:

  • an adult; and
  • an individual who has known the person being identified for more than 12 months; and
  • not a relative of the person being identified; and
  • not a party to the conveyancing transaction for which the person is being identified.

Where category 5(b) is used, the identity declarant must be an Australian legal practitioner, a bank manager, community leader, court officer, doctor, land council officeholder, licensed conveyancer, local government officeholder, nurse, public servant, or police officer.

The Identifier Declaration process

The person being identified, the declarant, and the subscriber or the subscriber agent, must all attend the same face-to-face in-person interview.

The subscriber or the subscriber agent must verify the identity of the declarant in accordance with the Verification of Identity Standard noted above, using documents from categories 1 to 3 only.

The Identifier Declaration is a statutory declaration completed by the declarant, which:

  • details the declarant’s name, address, occupation, and date of birth;
  • details the nature of the declarant’s relationship with the person being identified;
  • confirms that the declarant is not a relative of the person being identified;
  • confirms that the declarant is not a party to the conveyancing transaction the person being identified has or is entering into;
  • notes the length of time that the declarant has known the person being identified;
  • provides that to the declarant’s knowledge, information, and belief the person being identified is who they purport to be; and
  • where applicable, provides that the declarant is an Australian legal practitioner, a bank manager, community leader, court officer, doctor, land council officeholder, licenced conveyancer, local government officeholder, nurse, public servant, or police officer.

Non Australian citizens and residents

Category Minimum document requirements

6

 (a) Foreign passport
plus another form of government issued photographic identity document
plus change of name or marriage certificate if necessary

(b) Foreign passport
plus full birth certificate
plus another form of government issued identity document
plus change of name or marriage certificate if necessary

Glossary of terms

Client authorisation A client authorisation form is a document by which a party to a transaction authorises a subscriber to act on their behalf in relation to an electronic settlement or lodgement.
Once a client has been identified, the client must then authorise the subscriber to act on their behalf in the execution and lodgement of dealings.
Digital
certificate		 A digital certificate authorises the holder to use the ELN. The certificate is stored on a USB token which is inserted into a computer when logging in to the workspace.
Electronic
lodgement
network (ELN)		 An ELN, such as SYMPLI and PEXA, enables conveyancing transactions, funds settlement, and the lodging of various instruments to occur electronically with the land registry office.
Identity agent Where a face-to-face interview is not possible, an identity agent may be used. An identity agent is a person the subscriber or representative reasonably believes to be reputable, competent, and insured and is authorised by them to conduct verification of identity on their behalf.
Identity agents can include solicitors and licensed conveyancers provided they meet the above criteria, as well as commercial entities offering identity agent services such as Australia Post or WebVOI provided by InfoTrack.
It is important to obtain the copies of the documents used to verify the identity of a person or an identity declarant from the identity agent. The copies must be signed, dated, and endorsed as a true copy of the originals by the identity agent. An identity agent must also provide an Identity Agent Certification: r 6.5 ARNECC Model Participation Rules.
Representative A subscriber who acts on behalf of a client.
Supporting evidence Documentary evidence of identity must be retained for at least seven years from the date of lodgement of a dealing, whether an electronic or paper transaction: r 6.6 ARNECC Model Participation Rules.
Subscriber A person who is authorised under a participation agreement to use an electronic lodgement network to complete conveyancing transactions on behalf of another person, or on their own behalf.
Subscribers are required to:
–               be identified pursuant to the standard;
–               have an ABN;
–               be of good character;
–               hold the necessary professional indemnity insurance; and
–               be entitled to act for parties in conveyancing transactions.
Verifying identity The verification of identity requirements are satisfied by taking reasonable steps, which are not specified and rely upon common law principles. However, compliance with the Verification of Identity Standard constitutes taking reasonable steps.

 

Personal injury lists – VIC

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The Supreme Court has introduced new procedures for matters in the personal injury lists.

Changes have been made to first directions orders in the four specialist personal injury lists in the Common Law Division with the intention of increasing efficiency, and reducing delays and adjournments.

Personal injury lists

In the Supreme Court, personal injury claims are dealt with in four specialist lists:

  • Personal Injuries List
  • Dust Diseases List
  • Institutional Liability List
  • Civil Circuit List

New forms for consent orders

Parties submitting minutes of proposed consent orders in these lists must now use the revised First Directions forms available on the Court’s website and on the matter plan in the By Lawyers Personal Injury (VIC) publication.

The major changes to the standard orders include:

  • the ability for the parties to agree to extend or abridge, by consent, the time for interlocutory steps before the post-mediation directions hearing, or, in the case of expedited Dust Diseases List matters, the final directions hearing;
  • time for issuing subpoenas and serving supplementary reports and final particulars of special damages;
  • when supplementary medical and expert reports can be served close to trial; and
  • matters about which the court expects to be informed at the post-mediation directions hearing, including expert evidence.

Practice notes

The personal injury lists are each managed subject to their relevant Practice Note being:

First Directions Hearing

After the defence is filed, the court will contact the parties to arrange a First Directions Hearing.

The court expects a practitioner with conduct of the file, or a good working knowledge of it, to appear at all directions hearings.

The parties are encouraged to submit consent orders to avoid an appearance.

Publication updates

The commentary and matter plan in the by Lawyers Personal Injury (VIC) publication has been updated accordingly.

101 Succession Answers – QLD

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Two new Supreme Court cases have been added to the By Lawyers reference manual 101 Succession Answers (QLD).

In Re Chambers (dec’d) 2023 QSC 230 irregularities with signing a will did not invalidate it. The testator and the witnesses had missed signing parts of a two-page, pre-printed, will form. The court found there was no question that the testator intended the document to be a testamentary instrument. The evidence showed that he signed it, the two witnesses were both present and saw him sign it, and they each signed the will in his presence.

In Re Briggs (dec’d) [2023] QSC 226 the issue of capacity was determined without expert medical evidence. Letters written by two treating doctors shortly before the dates of the relevant will certifying the deceased did not have capacity for decision-making were enough for the court to find she had no testamentary capacity.

Interestingly, both of these cases were determined without oral evidence, under r 489 of the Uniform Civil Procedure Rules 1999 (QLD). This can occur in any case, on the application of a party, unless the court thinks it inappropriate. In Briggs the court noted:

Nothing in either r 489 or r 491 expressly defines the notion of disposal without oral hearing being “inappropriate”. The meaning of the term “inappropriate” must be taken from the context and purpose of the rule. Here, the clear purpose of r 489 is the efficient and economical disposal of the Court’s business. The primary aim though of the Court in exercise of any of its jurisdiction is to do justice. It will not be “inappropriate” to exercise the Court’s jurisdiction to determine the application without oral hearing where justice can be done without an oral hearing.

101 Succession Answers (QLD) is available in the Reference Materials folder in Folder A. Getting the matter underway on all succession related matter plans: Probate, Letters of Administration, Family Provision Claim, Wills, Powers of Attorney and Advance Health Directives.

Specialist Family Violence List – NSW

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A Specialist Family Violence List operates in some Local Court locations from 25 September 2023.

The Specialist Family Violence List Pilot Practice Note applies in the Downing Centre Local Court, Blacktown Local Court, Newcastle Local Court, Gunnedah circuit, excluding Tamworth, and Moree circuit. The list may operate at other local courts at the Chief Magistrate’s direction.

The practice note applies to all family violence related proceedings listed at those locations, which include:

  • All domestic violence offences, including breaches of Apprehended Domestic Violence Orders (ADVOs);
  • All applications for ADVOs, whether commenced by police or privately;
  • Family law applications if ancillary to an ADVO application.

Apprehended Personal Violence Orders and personal violence offences that are not domestic violence offences under s 11 of the Crimes (Domestic and Personal Violence) Act 2007 are excluded.

Eligible matters will automatically be placed in the list. Charges and related AVOs will be listed together and remain together as they progress.

There are different procedures for standalone ADVO proceedings and those with related criminal charges.

Lapsing interim order

The practice note provides that the court can deal with standalone ADVO matters in the Specialised Family Violence list by imposing a lapsing interim order (LIO). This is an alternative to a final order and operates to the same effect as a conditional discharge in a criminal matter.

If the court considers it appropriate to impose a LIO, the matter will be adjourned for a period at the court’s discretion and, if there are no breaches of the order during that period, the AVO may be withdrawn and dismissed.

If the defendant agrees to undertake counselling or other intervention during the adjournment period, this will be taken into account by the court when the matter returns.

Either party may return the matter to court at any time during the adjournment period to fix a date for a defended hearing. If a breach of the LIO results in charges, the court may relist the proceedings.

Each party can be heard on the suitability of an LIO. In determining whether to impose an LIO, the court may consider:

  • if it is by consent;
  • the complainant’s views, including if they do not want a final order and whether they have received independent advice;
  • the relationship between the complainant and defendant;
  • the seriousness of the allegations and the conditions being sought;
  • whether any LIO has been sought previously;
  • any impact of imposing an interim order rather than a final order;
  • whether the defendant is seeking treatment or counselling; and
  • any other matter the court thinks appropriate.

The commentaries in the By Lawyers Apprehended Violence Order (NSW) and Local Court (NSW) – Criminal guides have been updated accordingly.

Investigation Notices – SA

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Investigation Notices have been introduced in South Australian courts as a new mechanism of enforcing debts.

From 18 September 2023, judgment creditors can serve Investigation Notices on judgment debtors prior to an Investigation Summons being issued.

Section 4 of the Enforcement of Judgments Act 1991 already allows the court to investigate a judgment debtor’s financial position with regard to their means of satisfying the debt.  This is usually the first step in enforcement proceedings. The court issues a summons which requires the judgment debtor to attend and produce documents at a hearing. The judgment creditor is entitled to cross-examine the judgment debtor on their evidence and documents. Failure to appear in response to a investigation summons can render a judgment debtor liable to be arrested.

The process of serving Investigation Notices under the new s 3A inserted into the Act by the Statutes Amendment (Civil Enforcement) Act 2023 is an informal preliminary step. It has the potential to save parties the time and cost involved in an adversarial hearing. The notice is issued by the judgment creditor and requires the judgment debtor to provide information including documents to evidence their ability to satisfy the judgment debt. This new preliminary step is not compulsory – the judgment creditor can elect to issue the notice, or proceed directly to an Investigation Summons and hearing. It is however expected that Investigation Notices will be widely utilised in an attempt to contain costs. Likewise, compliance by judgment debtors might be driven by the desire to avoid the costs of a hearing, which are added to the judgment debt under s 3 of the Act.

The amending Act also tweaks the existing provisions about garnishee orders to remove the requirement for the judgment debtor’s consent before wages or bank accounts can be garnisheed and to include term deposit accounts. Further amendments to 7 of the Act expand the powers of the Sheriff when enforcing judgments against land.

Subpoena forms and processes – VIC

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Amendments to subpoena forms and processes in the County Court of Victoria commenced on 14 August 2023.

Chapters I and III of the County Court Civil Procedure Rules 2018 are revised as to subpoena forms and processes. The County Court (Chapters I and III Subpoena Amendment) Rules 2023 amend the prescribed civil and criminal subpoena forms.

The Rules now require subpoena recipients to respond using the eCase electronic case management system. The Registrar or Court must grant leave for any physical production. The eCase platform is mandatory for production, inspection, and objections.

The amended civil subpoena forms are:

  • Form 42A Subpoena to attend to give evidence – minor amendment;
  • Form 42AA Subpoena for production to Registrar – substituted form;
  • Form 42B Subpoena to produce – substituted form; and
  • Form 42C Subpoena both to attend to give evidence and to produce – substituted form.

The County Court Criminal Procedure Rules 2019 have also been amended.

The amended criminal subpoena forms are:

  • Form 1D Subpoena to attend to give evidence – minor amendment;
  • Form 1E Subpoena to produce – substituted form;
  • Form 1EA Subpoena both to attend to give evidence and to produce – substituted form; and
  • Form 1I Short service order subpoena – minor amendment.

From 14 August 2023, the Registrar will not issue any subpoenas that are not in the correct form. The new subpoena forms are available from the Victorian County Court website.

The By Lawyers Victoria guides County Court Litigation – Plaintiff and County Court Litigation – Defendant have been updated for the new subpoena forms and processes, including links.

Duplicate certificates of title abolished – WA

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Duplicate certificates of title have no effect in Western Australia from 7 August 2023. Duplicate titles or duplicate certificates were also known as paper titles or title deeds.

Under the Transfer of Land Amendment Act 2022, duplicate or paper certificates of title were rendered invalid. They ceased to enjoy the status of a legal document from 7 August 2023. Paper certificates of title will no longer be issued or created by Landgate, nor required to register a dealing.

Verification of identity and establishing a right to deal with an interest in land are now the means of proving ownership. They replace possession or control of a paper certificate of title.

Full electronic conveyancing in Western Australia is one step closer thanks to these changes modernising land transactions.

If you do hold a paper or duplicate certificate of title, you do not need to return it to Landgate or destroy it. It will automatically be considered invalid from 7 August 2023. You can keep your duplicate certificate of title for display purposes.

One can obtain a record of your certificate of title through Landgate’s website through a title search. It will show you the most up to date information and any interests registered over the title.

The By Lawyers Western Australia Purchase of Real Property, Sale of Real Property, Lease, Mortgage, Probate, and Letters of Administration publications have been updated accordingly.

 

 

 

Domestic violence leave – FED

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Family and domestic violence leave entitlements are extended to small business employees from 1 August 2023.

Under the Fair Work Amendment (Paid Family and Domestic Violence Leave) Act 2022 paid leave replaced the previous entitlement to unpaid leave for all non-small business employees from 1 February 2023. That entitlement is now extended to small business employees, so it covers everyone. A small business is one with less than 15 employees.

Full-time, part-time, and casual employees are entitled to 10 days of paid family and domestic violence leave in every 12-month period of employment. It is not calculated on a pro-rata basis for casual employees and is all available up-front, which means a new employee has an immediate entitlement to the full ten days. The leave does not accumulate if not taken.

The leave can be taken for any purpose relating to the impact of family and domestic violence, which might include relocating, attending court, or attending medical, legal, counselling, and financial advice appointments.

Employers cannot include information in an employee’s pay slip identifying the type of leave paid.

Family and domestic violence is defined as violent, threatening, or other abusive behaviour by an employee’s close relative, current or former intimate partner, or a member of their household that both seeks to coerce or control them and causes them harm or fear.

The leave can be taken during a period of personal or carer’s leave, or annual leave.

The notice and evidence requirements of s 107 of the Fair Work Act 2009 apply, including the requirement for the employer to maintain confidentiality: s 106C.

See the Fair Work Ombudsman website for more information.

The By Lawyers Employment Law publication has been updated accordingly.

Service and default judgment – VIC

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Amendments to the County Court rules alter the procedure for service and default judgment from 1 August 2023.

The County Court (Chapter I Service and Default Judgments Amendment) Rules 2023 amend the County Court Civil Procedure Rules 2018.

The new provisions deal with service of documents by email, and also introduce additional requirements for a plaintiff seeking to enter or apply for judgment against a defendant who fails to serve a defence within time.

Service

For some time, it has been permissible to effect ordinary service by email under r 6.07 unless the attachments to the email were more than 10 megabytes. The rule has now been amended to provide that attachments over 10 megabytes may be served by multiple emails, each with attachments not exceeding 10 megabytes.

Default judgment

For default judgment under r 21.01, where the defendant has failed to serve a defence within the required time, the amendments to the County Court rules require the plaintiff to first serve on the defendant a notice in Form 21A informing the defendant that the plaintiff intends to enter or apply for judgment against them. Then, if the defendant does not serve a defence within seven days of receiving the notice, the plaintiff may enter or apply for judgment.

When applying for judgment, an affidavit is required proving the failure to serve the defence within time, service of the notice, and the failure to then serve a defence within seven days.

Publication updates

The By Lawyers County Court – Acting for the Plaintiff and County Court – Acting for the Defendant guides have been updated for the changes to service and default judgment respectively.

Subpoenas – FED

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From 31 July subpoenas for production of documents, in most family law matters can be eFiled on the Commonwealth Courts Portal.

The Federal Circuit and Family Court of Australia (FCFCOA) has introduced eFiling through the Commonwealth Courts Portal for subpoenas seeking the production of documents where there is an ongoing family law final orders application on foot. Online filing is not available for interim applications, contravention applications or subpoenas for attendance and for attendance and production of documents.

There is a new option available in relevant matters on the portal for Request to issue a subpoena.

New subpoena forms apply. The old forms will still be accepted until Friday 29 September 2023.

Once the subpoena is issued the court will apply a Subpoena (Family Law) Coversheet which includes the last date for service, the date for production, and how the documents are to be produced. The new coversheets will be applied to all subpoenas, not only those able to be eFiled.

Documents in response to a subpoena cannot be produced through the portal. If possible, they are produced by sending an email to the court registry at the address noted on the subpoena’s cover sheet. All family law registries have a subpoena email address. If production by email is not possible the documents need to be otherwise delivered to the registry.

As part of this change the Notice of Objection has been removed from the new subpoena form. An updated version of the Notice of Objection is now a separate form available on the FCFCOA’s website.

By Lawyers Family Law Property Settlement and Children guides have been updated accordingly, with amended commentary and new hyperlinks covering the new processes for subpoenas, and the new forms added to the matter plans. The previous forms will remain available on the matter plan until at least 29 September.

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