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 |
|
5 |
An Identifier Declaration is available where the person cannot be identified by categories 1 to 4.
(a) Identifier Declaration (b) Identifier Declaration by a person specified in Verification of Identity Standard paragraph 4.4(e) |
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 |
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. |