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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Electronic Conveyancing (Adoption of National
Law) Bill 2012
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1 Purpose 1
2 Commencement 2
3 Definitions 2
PART 2--APPLICATION OF ELECTRONIC CONVEYANCING
NATIONAL LAW 3
4 Application of Electronic Conveyancing National Law 3
5 Meaning of general terms in Electronic Conveyancing
National Law for purposes of this jurisdiction 3
6 Responsible tribunal for Electronic Conveyancing National
Law (Victoria) 4
7 Delegation to any other person for Electronic Conveyancing
National Law (Victoria) 4
8 Exclusion of interpretation legislation of this jurisdiction 4
9 Offence to give false or misleading information 4
10 Regulations 5
PART 3--AMENDMENT OF OTHER ACTS 6
Division 1--Amendment of Transfer of Land Act 1958 6
11 Definitions 6
12 Powers of Registrar 6
13 New Part IIIB inserted 6
PART IIIB--REGISTRY INSTRUMENTS 6
44O Powers of Registrar 6
44P Duty of Registrar in relation to priority of registry
instruments 7
44Q ELN malfunction 8
44R Evidence of registry instruments 8
44S Electronic certification of registry instrument 9
571033B.I-14/11/2012 i BILL LA INTRODUCTION 14/11/2012
Clause Page
Division 2--Amendment of Property Law Act 1958 9
14 Rights of purchaser as to execution 9
Division 3--Amendment of Interpretation of Legislation Act 1984 10
15 New section 38H inserted 10
38H References to Electronic Conveyancing National Law 10
Division 4--Cessation of operation of Victorian electronic
lodgement network 10
Subdivision 1--Amendment of Transfer of Land Act 1958 10
16 Repeal and substitution of specified definitions 10
17 Repeal of Part IIIA 10
18 ELN malfunction 11
19 Evidence of registry instruments 11
20 Electronic certification of registry instrument 11
21 Regulations 12
Subdivision 2--Amendment of Property Law Act 1958 12
22 Rights to purchaser as to execution 12
Division 5--Repeal of amending Part 12
23 Repeal of amending Part 12
ENDNOTES 13
Annexure 14
571033B.I-14/11/2012 ii BILL LA INTRODUCTION 14/11/2012
PARLIAMENT OF VICTORIA
Introduced in the Assembly
Electronic Conveyancing (Adoption of
National Law) Bill 2012
A Bill for an Act to adopt in Victoria a national law relating to
electronic conveyancing and to make consequential amendments to
the Transfer of Land Act 1958 and other Acts and for other
purposes.
The Parliament of Victoria enacts:
PART 1--PRELIMINARY
1 Purpose
The main purpose of this Act is--
(a) to adopt in Victoria a national law relating to
5 electronic conveyancing; and
(b) to make consequential amendments to the
Transfer of Land Act 1958 and other Acts.
571033B.I-14/11/2012 1 BILL LA INTRODUCTION 14/11/2012
Electronic Conveyancing (Adoption of National Law) Bill 2012
Part 1--Preliminary
s. 2
2 Commencement
This Act comes into operation on a day or days to
be proclaimed.
3 Definitions
5 (1) For the purposes of this Act, the local application
provisions of this Act are the provisions of this
Act other than the Electronic Conveyancing
National Law (Victoria).
(2) In the local application provisions of this Act--
10 Electronic Conveyancing National Law
(Victoria) means the provisions applying in
this jurisdiction because of section 4.
__________________
571033B.I-14/11/2012 2 BILL LA INTRODUCTION 14/11/2012
Electronic Conveyancing (Adoption of National Law) Bill 2012
Part 2--Application of Electronic Conveyancing National Law
s. 4
PART 2--APPLICATION OF ELECTRONIC
CONVEYANCING NATIONAL LAW
4 Application of Electronic Conveyancing National
Law
5 The Electronic Conveyancing National Law as in
force from time to time set out in the Appendix to
the Electronic Conveyancing (Adoption of
National Law) Act 2012 of New South Wales
(other than section 39 of that Law)--
10 (a) applies as a law of this jurisdiction; and
(b) as so applying may be referred to as the
Electronic Conveyancing National Law
(Victoria); and
(c) applies as if it were an Act.
15 5 Meaning of general terms in Electronic
Conveyancing National Law for purposes of this
jurisdiction
In the Electronic Conveyancing National Law
(Victoria)--
20 land titles legislation means the Transfer of
Land Act 1958;
Registrar has the same meaning as it has in the
Transfer of Land Act 1958;
registry instrument has the same meaning as it
25 has in the Transfer of Land Act 1958;
this jurisdiction means Victoria;
titles register has the same meaning as Register
has in the Transfer of Land Act 1958.
571033B.I-14/11/2012 3 BILL LA INTRODUCTION 14/11/2012
Electronic Conveyancing (Adoption of National Law) Bill 2012
Part 2--Application of Electronic Conveyancing National Law
s. 6
6 Responsible tribunal for Electronic Conveyancing
National Law (Victoria)
The Supreme Court and the County Court are
each the responsible tribunal for this jurisdiction
5 for the purposes of the Electronic Conveyancing
National Law (Victoria).
7 Delegation to any other person for Electronic
Conveyancing National Law (Victoria)
For the purposes of section 37 of the Electronic
10 Conveyancing National Law (Victoria) the
reference to any other person is taken to be a
reference to public official within the meaning of
section 4(1) of the Public Administration Act
2004.
15 8 Exclusion of interpretation legislation of this
jurisdiction
The Interpretation of Legislation Act 1984 does
not apply to the Electronic Conveyancing
National Law (Victoria) or to the instruments
20 made under that Law.
9 Offence to give false or misleading information
(1) A person must not give information or an answer
to the Registrar under the Electronic
Conveyancing National Law (Victoria) or an
25 instrument under that Law that the person believes
to be false or misleading in any material
particular.
Penalty: 60 penalty units.
(2) A person must not produce a document to the
30 Registrar under the Electronic Conveyancing
National Law (Victoria) or an instrument under
that Law that the person knows to be false or
misleading in a material particular without
indicating the respect in which it is false or
571033B.I-14/11/2012 4 BILL LA INTRODUCTION 14/11/2012
Electronic Conveyancing (Adoption of National Law) Bill 2012
Part 2--Application of Electronic Conveyancing National Law
s. 10
misleading and, if practicable, providing correct
information.
Penalty: 60 penalty units.
10 Regulations
5 The Governor in Council may make regulations
for or with respect to any matter that by this Act is
required or permitted to be prescribed or that is
necessary or convenient to be prescribed for
carrying out or giving effect to this Act.
__________________
571033B.I-14/11/2012 5 BILL LA INTRODUCTION 14/11/2012
Electronic Conveyancing (Adoption of National Law) Bill 2012
Part 3--Amendment of Other Acts
s. 11
PART 3--AMENDMENT OF OTHER ACTS
Division 1--Amendment of Transfer of Land Act 1958
11 Definitions
See: Insert the following definitions in section 4(1) of
Act No.
5 6399. the Transfer of Land Act 1958--
Reprint No. 16
as at "ELN means ELN within the meaning of the
23 October
2008
Electronic Conveyancing National Law
and (Victoria);
amending
Act Nos registry instrument means an instrument other
69/2009,
10 80/2009 and than an electronic instrument lodged in the
35/2010. electronic lodgement network;".
LawToday:
www.
legislation.
vic.gov.au
12 Powers of Registrar
Section 44D(6) of the Transfer of Land Act
1958 is repealed.
15 13 New Part IIIB inserted
After Part IIIA of the Transfer of Land Act 1958
insert--
"PART IIIB--REGISTRY INSTRUMENTS
44O Powers of Registrar
20 (1) If a registry instrument is lodged for
registration under this Act, the Registrar
may--
(a) refuse to register the registry instrument
if, in the opinion of the Registrar, the
25 registry instrument--
(i) is not in the approved form
(if any); or
(ii) is incomplete; or
571033B.I-14/11/2012 6 BILL LA INTRODUCTION 14/11/2012
Electronic Conveyancing (Adoption of National Law) Bill 2012
Part 3--Amendment of Other Acts
s. 13
(iii) contains errors; or
(iv) is not completed correctly; or
(b) seek further information in respect of
the registry instrument; or
5 (c) register the registry instrument under
section 27A without issuing a
certificate of title; or
(d) register the registry instrument under
section 27A and produce a certificate of
10 title under section 27B.
(2) Nothing in subsection (1) affects any other
power of the Registrar to refuse registration
of a registry instrument.
(3) Nothing in section 27B requires the Registrar
15 to produce a certificate of title in respect of
the registration of a registry instrument.
(4) Nothing in this Part prevents the Registrar
from producing a certificate of title under
section 27B at any time after the registration
20 of a registry instrument.
(5) If the Registrar refuses to register a registry
instrument and the parties to the registry
instrument wish to proceed with the relevant
dealing, the Registrar may require the
25 relevant instruments to be executed and
lodged for registration in a form other than
an electronic communication.
44P Duty of Registrar in relation to priority of
registry instruments
30 The Registrar must ensure that a registry
instrument lodged for registration is dealt
with in a manner that ensures that section 34
is complied with.
571033B.I-14/11/2012 7 BILL LA INTRODUCTION 14/11/2012
Electronic Conveyancing (Adoption of National Law) Bill 2012
Part 3--Amendment of Other Acts
s. 13
44Q ELN malfunction
(1) The Registrar may amend the Register to
correct errors in the Register and supply
entries or recordings omitted to be made in
5 the Register under this Act if the error or
omission resulted from a malfunction of the
ELN.
(2) The Registrar must keep a record of every
correction under subsection (1).
10 (3) Every correction under subsection (1) is to
have the same validity and effect as if the
error or omission had not occurred.
44R Evidence of registry instruments
(1) The Registrar must, on the application of any
15 person, produce a document in writing
recording information contained in a registry
instrument that has been lodged for
registration under this Act.
(2) A document produced under subsection (1)
20 must be certified by the Registrar as a true
representation of the information in the
registry instrument.
(3) A document certified under subsection (2) is
evidence of the matters contained in the
25 document.
(4) An application under this section must be in
the appropriate approved form and be
accompanied by the prescribed fee (if any).
571033B.I-14/11/2012 8 BILL LA INTRODUCTION 14/11/2012
Electronic Conveyancing (Adoption of National Law) Bill 2012
Part 3--Amendment of Other Acts
s. 14
44S Electronic certification of registry
instrument
(1) The Registrar may produce in an electronic
form a representation of any registry
5 instrument lodged in the ELN.
(2) The Registrar may certify the electronic
representation in any manner determined by
the Registrar.
(3) A representation of a registry instrument
10 certified in accordance with this section is
evidence of the contents and nature of the
registry instrument.
__________________".
Division 2--Amendment of Property Law Act 1958
15 14 Rights of purchaser as to execution
In section 75(3) of the Property Law Act 1958 See:
Act No.
after "does not apply to" insert "a registry 6344.
instrument or". Reprint No. 12
as at
10 May 2007
and
amending
Act Nos
75/2006,
12/2008,
24/2008,
1/2010,
29/2011 and
50/2011.
LawToday:
www.
legislation.
vic.gov.au
571033B.I-14/11/2012 9 BILL LA INTRODUCTION 14/11/2012
Electronic Conveyancing (Adoption of National Law) Bill 2012
Part 3--Amendment of Other Acts
s. 15
Division 3--Amendment of Interpretation of Legislation Act
1984
15 New section 38H inserted
See: After section 38G of the Interpretation of
Act No.
5 10096. Legislation Act 1984 insert--
Reprint No. 10
as at "38H References to Electronic Conveyancing
20 May 2010
and National Law
amending
Act Nos In an Act or subordinate instrument--
10/2010,
11/2010, Electronic Conveyancing National Law
10 13/2010,
64/2010,
(Victoria) means the provisions
70/2010, applying because of section 4 of the
72/2010, Electronic Conveyancing (Adoption
80/2011,
21/2012, of National Law) Act 2012.".
43/2012 and
64/2012.
LawToday:
www.
legislation.
vic.gov.au
Division 4--Cessation of operation of Victorian electronic
15 lodgement network
Subdivision 1--Amendment of Transfer of Land Act 1958
16 Repeal and substitution of specified definitions
(1) In section 4(1) of the Transfer of Land Act 1958,
the definitions of electronic instrument and
20 electronic lodgement network are repealed.
(2) In section 4(1) of the Transfer of Land Act 1958,
for the definition of registry instrument
substitute--
"registry instrument means instrument;".
25 17 Repeal of Part IIIA
Part IIIA of the Transfer of Land Act 1958 is
repealed.
571033B.I-14/11/2012 10 BILL LA INTRODUCTION 14/11/2012
Electronic Conveyancing (Adoption of National Law) Bill 2012
Part 3--Amendment of Other Acts
s. 18
18 ELN malfunction
After section 44Q(3) of the Transfer of Land Act
1958 insert--
"(4) For the purposes of this section--
5 ELN includes the electronic lodgement
network referred to in section 44B as in
force before its repeal by section 17 of
the Electronic Conveyancing
(Adoption of National Law) Act
10 2012.".
19 Evidence of registry instruments
After section 44R(4) of the Transfer of Land Act
1958 insert--
"(5) For the purposes of this section--
15 Old Part IIIA instrument means an
electronic instrument under Part IIIA as
in force before its repeal by section 17
of the Electronic Conveyancing
(Adoption of National Law) Act
20 2012;
registry instrument includes an Old Part
IIIA instrument.".
20 Electronic certification of registry instrument
After section 44S(3) of the Transfer of Land Act
25 1958 insert--
"(4) For the purposes of this section--
ELN includes the electronic lodgement
network referred to in section 44B as in
force before its repeal by section 17 of
30 the Electronic Conveyancing
(Adoption of National Law) Act
2012;
571033B.I-14/11/2012 11 BILL LA INTRODUCTION 14/11/2012
Electronic Conveyancing (Adoption of National Law) Bill 2012
Part 3--Amendment of Other Acts
s. 21
Old Part IIIA instrument means an
electronic instrument under Part IIIA as
in force before its repeal by section 17
of the Electronic Conveyancing
5 (Adoption of National Law) Act
2012;
registry instrument includes an Old Part
IIIA instrument.".
21 Regulations
10 Section 120(2)(ff) and (fg) of the Transfer of
Land Act 1958 are repealed.
Subdivision 2--Amendment of Property Law Act 1958
22 Rights to purchaser as to execution
In section 75(3) of the Property Law Act 1958
15 omit "or an electronic instrument".
Division 5--Repeal of amending Part
23 Repeal of amending Part
This Part is repealed on the first anniversary of
the first day on which all of its provisions are in
20 operation.
571033B.I-14/11/2012 12 BILL LA INTRODUCTION 14/11/2012
Electronic Conveyancing (Adoption of National Law) Bill 2012
Endnotes
ENDNOTES
571033B.I-14/11/2012 13 BILL LA INTRODUCTION 14/11/2012
Electronic Conveyancing (Adoption of National Law) Bill 2012
Annexure
ANNEXURE
Electronic Conveyancing (Adoption of National
Law) Bill 2012 of New South Wales
EXPLANATORY NOTE
Appendix Electronic Conveyancing National Law.
The Appendix sets out the National Law.
Part 1 Preliminary
Clause 1 sets out the name (also called the short title) of the National
Law.
Clause 2 provides for the commencement of the National Law in a
participating jurisdiction to be as provided for by an Act of that
jurisdiction.
Clause 3 defines certain expressions used in the National Law.
Clause 4 gives effect to Schedule 1 to the National Law, which
provides for the interpretation of the National Law.
Clause 5 provides for the object of the National Law, as set out in the
Overview.
Clause 6 provides that the National Law binds the State.
Part 2 Electronic Conveyancing
Division 1 Electronic lodgment
Clause 7 allows a document to be lodged electronically for the
purposes of land titles legislation if the document is lodged in a form
approved by the Registrar and by means of an electronic lodgment
network provided and operated under the National Law.
Clause 8 requires the Registrar to process a document lodged
electronically.
Clause 9 provides that an instrument executed and lodged
electronically under the National Law has the same effect as a paper
document.
571033B.I-14/11/2012 14 BILL LA INTRODUCTION 14/11/2012
Electronic Conveyancing (Adoption of National Law) Bill 2012
Annexure
Division 2 Client authorisations and digital signatures
Subdivision 1 Client authorisations
Clause 10 provides for client authorisations. A client authorisation is
a document by which a party to a conveyancing transaction authorises
a subscriber to complete a conveyancing transaction electronically.
Clause 11 gives effect to client authorisations.
Subdivision 2 Digital signatures
Clause 12 provides for the digital signing of documents by
subscribers and the effect of documents that are digitally signed. The
clause sets out the circumstances in which a digital signature may be
repudiated, namely, that the digital signature was not created by the
subscriber or by a person authorised to create digital signatures on
behalf of the subscriber, and the subscriber did not fail to comply with
the participation rules or to take reasonable care with respect to the
creation of the digital signature. The clause does not prevent the
unsigning of a document, which may occur prior to settlement.
Part 3 Electronic Lodgment Networks
Division 1 Preliminary
Clause 13 explains what is meant by an Electronic Lodgment
Network or ELN. An ELN is an electronic system that enables the
lodging of registry instruments and other documents in electronic
form for the purposes of land titles legislation.
Division 2 Operation of Electronic Lodgment Networks
Clause 14 gives the Registrar power to provide and operate an ELN.
Clause 15 gives the Registrar power to approve a person to provide
and operate an ELN. Such a person is an Electronic Lodgment
Network Operator (ELNO).
Clause 16 permits the Registrar to attach conditions to an approval to
operate an ELN.
Clause 17 permits a person approved as an ELNO to provide an ELN
in accordance with the approval.
571033B.I-14/11/2012 15 BILL LA INTRODUCTION 14/11/2012
Electronic Conveyancing (Adoption of National Law) Bill 2012
Annexure
Clause 18 requires a person approved as an ELNO to comply with the
operating requirements.
Clause 19 provides for renewal of approval as an ELNO.
Clause 20 permits the Registrar to revoke or suspend the approval of a
person as an ELNO.
Clause 21 permits the Registrar to monitor activities in an ELN.
Division 3 Operating requirements and participation
rules
Clause 22 enables the Registrar to determine requirements in relation
to the operation of an ELNO and the provision and operation, by an
ELNO, of an ELN (operating requirements).
Clause 23 enables the Registrar to determine rules relating to the use
of an ELN (participation rules).
Clause 24 requires the Registrar to have regard to any model
operating requirements or model participation rules published by the
Australian Registrars' National Electronic Conveyancing Council in
determining the operating requirements and participation rules.
Clause 25 requires the Registrar to ensure that copies of the current
operating requirements and participation rules, and superseded
versions, are publicly available.
Clause 26 requires subscribers who are authorised to use an ELN to
comply with the participation rules relating to the ELN.
Clause 27 allows the Registrar to waive compliance with all or any
provisions of the operating requirements or participation rules.
Division 4 Appeals
Clause 28 provides for appeals against decisions of the Registrar
made under the National Law.
Clause 29 provides for the determination of appeals by the
responsible tribunal (in New South Wales, the Supreme Court).
Clause 30 provides for the awarding of costs on appeals.
Clause 31 makes it clear that the proposed Division applies despite
any Act that establishes or continues the responsible tribunal, but does
not otherwise limit such an Act.
571033B.I-14/11/2012 16 BILL LA INTRODUCTION 14/11/2012
Electronic Conveyancing (Adoption of National Law) Bill 2012
Annexure
Division 5 Compliance examinations
Clause 32 makes it clear that the Division extends to former ELNOs
and former subscribers.
Clause 33 enables the Registrar to conduct investigations (compliance
examinations) in relation to an ELNO or subscriber for the purpose of
ascertaining whether or not the operating requirements and
participation rules are being complied with, or investigating any
suspected misconduct with respect to the use of an ELN.
Clause 34 requires an ELNO or subscriber to cooperate with a
compliance examination.
Clause 35 allows the Registrar, instead of conducting a compliance
examination or during or after the conduct of a compliance
examination, to refer a matter to an investigatory, disciplinary or other
appropriate authority.
Clause 36 makes it clear that the Division does not limit any provision
of the land titles legislation that also authorises investigations,
inquiries or examinations.
Part 4 Miscellaneous
Division 1 Delegation
Clause 37 permits the Registrar to delegate functions under the
National Law.
Division 2 Liability of Registrar
Clause 38 makes it clear that the Registrar is not obliged to monitor
activities in an ELN or to conduct compliance examinations.
Clause 39 provides that no compensation is payable for things done or
omitted in good faith in connection with the monitoring of activities in
an ELN or the conduct of compliance examinations.
Clause 40 makes it clear that the Registrar is not responsible for the
regulation or operation of any services provided by an ELNO that are
additional to the ELN.
571033B.I-14/11/2012 17 BILL LA INTRODUCTION 14/11/2012
Electronic Conveyancing (Adoption of National Law) Bill 2012
Annexure
Division 3 Relationship with other laws
Clause 41 makes it clear that the National Law is in addition to and
not in substitution for the laws of the State relating to electronic
transactions or the use of electronic documents.
Clause 42 provides that a power conferred by the land titles
legislation to make an instrument of a legislative or administrative
character, or to do any other thing, extends to making instruments, or
doing other things, for the purposes of the National Law.
Schedule 1 Miscellaneous provisions relating to
interpretation
Schedule 1 sets out the general interpretation provisions that have
effect in relation to the National Law. The provisions have effect in
substitution for the provisions of the Interpretation Act 1987.
571033B.I-14/11/2012 18 BILL LA INTRODUCTION 14/11/2012
Electronic Conveyancing (Adoption of National Law) Bill 2012
Annexure
Appendix Electronic Conveyancing National Law
-------------------------------------------------------------
Contents
Part 1 Preliminary
1 Short title
2 Commencement
3 Definitions
4 Interpretation generally
5 Object of this Law
6 Law binds the State
Part 2 Electronic Conveyancing
Division 1 Electronic lodgment
7 Documents may be lodged electronically
8 Registrar to process documents lodged electronically
9 Status of electronic registry instruments
Division 2 Client authorisations and digital signatures
Subdivision 1 Client authorisations
10 Client authorisations
11 Effect of client authorisation
Subdivision 2 Digital signatures
12 Reliance on, and repudiation of, digital signatures
Part 3 Electronic Lodgment Networks
Division 1 Preliminary
13 Electronic Lodgment Network
Division 2 Operation of Electronic Lodgment Networks
14 Registrar may provide and operate ELN
15 Registrar may approve ELNO to provide and operate
ELN
16 Conditions of approval as ELNO
17 Effect of approval as ELNO
18 ELNO required to comply with operating
requirements
19 Renewal of approval as ELNO
20 Revocation or suspension of approval as ELNO
21 Monitoring of activities in ELN
571033B.I-14/11/2012 19 BILL LA INTRODUCTION 14/11/2012
Electronic Conveyancing (Adoption of National Law) Bill 2012
Annexure
Division 3 Operating requirements and participation
rules
22 Operating requirements for ELNOs
23 Participation rules
24 Registrar to have regard to nationally agreed model
operating requirements and participation rules
25 Publication of operating requirements and
participation rules
26 Subscribers required to comply with participation
rules
27 Waiving compliance with operating requirements or
participation rules
Division 4 Appeals
28 Appeal against decisions of Registrar
29 Determination of appeal
30 Costs
31 Relationship with Act establishing responsible tribunal
Division 5 Compliance examinations
32 Definitions
33 Compliance examinations
34 Obligation to cooperate with examination
35 Registrar may refer matter to appropriate authority
36 Land titles legislation not limited
Part 4 Miscellaneous
Division 1 Delegation
37 Delegation by Registrar
Division 2 Liability of Registrar
38 Registrar not obliged to monitor ELN or conduct
compliance examination
39 No compensation
40 Registrar not responsible for additional services
provided by ELNO
Division 3 Relationship with other laws
41 Other laws relating to electronic transactions not
affected
42 Powers may be exercised for purposes of this Law
571033B.I-14/11/2012 20 BILL LA INTRODUCTION 14/11/2012
Electronic Conveyancing (Adoption of National Law) Bill 2012
Annexure
Schedule 1 Miscellaneous provisions relating to
interpretation
571033B.I-14/11/2012 21 BILL LA INTRODUCTION 14/11/2012
Electronic Conveyancing (Adoption of National Law) Bill 2012
Annexure
Electronic Conveyancing (Adoption of National Law) Bill 2012
of New South Wales.
-------------------------------------------------------------
Appendix Electronic Conveyancing National
Law
Part 1 Preliminary
1 Short title
This Law may be cited as the Electronic Conveyancing
National Law.
2 Commencement
This Law commences in a participating jurisdiction as
provided by the application law of that jurisdiction.
3 Definitions
(1) In this Law:
application law means a law of a participating jurisdiction
that:
(a) applies this Law, either with or without
modifications, as a law of the participating
jurisdiction, or
(b) is a corresponding law.
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
1 The payment of the purchase price for the sale and purchase of
an interest in land.
2 The advancing of money in return for the granting of a mortgage
or charge over an interest in land.
3 The payment of any tax, duty (for example, stamp duty), fee or
charge payable in respect of the conveyancing transaction.
571033B.I-14/11/2012 22 BILL LA INTRODUCTION 14/11/2012
Electronic Conveyancing (Adoption of National Law) Bill 2012
Annexure
client authorisation has the meaning given in section 10.
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
(c) to get the registration, note or record of something
in the titles register changed, withdrawn or
removed.
corresponding law:
(a) means a law of a jurisdiction that corresponds to this
Law, and
(b) includes a law of a jurisdiction that is prescribed by
regulations made under a law of this jurisdiction as
a corresponding law.
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.
digitally sign, in relation to an electronic communication
or a document, means create a digital signature for the
communication or document.
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
571033B.I-14/11/2012 23 BILL LA INTRODUCTION 14/11/2012
Electronic Conveyancing (Adoption of National Law) Bill 2012
Annexure
Australia, that came into operation on 21 November 2011
and as in force from time to time.
jurisdiction means State.
land titles legislation, for the purposes of the application of
this Law as a law of a participating jurisdiction, has the
meaning given by the application law of the jurisdiction.
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) this Law 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 Registrar provides and operates the ELN, an
agreement between the Registrar and another person
under which the other person is authorised to use
that ELN.
participation rules means the rules determined under
section 23.
Registrar, for the purposes of the application of this Law
as a law of a participating jurisdiction, has the meaning
given by the application law of the jurisdiction.
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registry instrument, for the purposes of the application of
this Law as a law of a participating jurisdiction, has the
meaning given by the application law of the jurisdiction.
responsible tribunal, for the purposes of the application of
this Law as a law of a participating jurisdiction, has the
meaning given by the application law of the jurisdiction.
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.
titles register, for the purposes of the application of this
Law as a law of a participating jurisdiction, has the
meaning given by the application law of the jurisdiction.
(2) A term used in this Law or a statutory instrument and also
in the land titles legislation has the same meaning in this
Law or the statutory instrument as it has in that legislation,
unless the term is defined in this Law or the statutory
instrument or the context requires otherwise.
4 Interpretation generally
Schedule 1 applies in relation to this Law.
5 Object of this Law
(1) The object of this 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.
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(2) In order to achieve this object, this Law, among other
things, authorises the Registrar in each participating
jurisdiction to operate or authorise the operation of an
Electronic Lodgment Network, and provides for the
making of rules relating to the operation of the Electronic
Lodgment Network.
6 Law binds the State
(1) This Law 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
(c) a statutory corporation, or other entity, representing
the Crown in right of this jurisdiction.
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Part 2 Electronic Conveyancing
Division 1 Electronic lodgment
7 Documents may be lodged electronically
(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 Law.
(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 to process documents lodged electronically
(1) If a document is lodged electronically in accordance with
section 7, the Registrar 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 Law or any other law of this
jurisdiction.
9 Status of electronic registry instruments
(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.
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(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
(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,
(c) to authorise or complete any associated financial
transaction.
11 Effect of client authorisation
(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.
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(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
(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
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(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 Registrar, 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:
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(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.
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Part 3 Electronic Lodgment Networks
Division 1 Preliminary
13 Electronic Lodgment Network
(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 Registrar may provide and operate ELN
The Registrar may provide and operate an ELN.
15 Registrar may approve ELNO to provide and operate ELN
(1) The Registrar may approve a person as an Electronic
Lodgment Network Operator (ELNO) to provide and
operate an ELN.
(2) The Registrar 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 Registrar may grant more than one approval under this
section.
16 Conditions of approval as ELNO
(1) The Registrar may attach conditions to an approval under
section 15, and those conditions must be specified in the
approval.
(2) The Registrar 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.
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17 Effect of approval as ELNO
(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
(c) in accordance with the operating requirements.
(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
A person approved as an ELNO under section 15 must
comply with the operating requirements.
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 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 Registrar 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
The Registrar may revoke or suspend the approval of a
person as an ELNO in the circumstances set out in the
operating requirements.
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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,
(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,
(c) the technical and operational requirements for an
ELN,
(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,
(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 an ELN.
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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.
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.
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25 Publication of operating requirements and participation rules
(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 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 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
(1) A subscriber who is authorised under a participation
agreement to use an ELN must comply with the
participation rules relating to that ELN.
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(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.
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:
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(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,
(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.
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 either or both of the
following purposes:
(i) ascertaining whether or not the operating
requirements are being, or have been,
complied with,
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(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
(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.
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(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
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.
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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.
(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
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
Division 1 Delegation
37 Delegation by Registrar
The Registrar may delegate the following to any other
person:
(a) the power conferred by section 21 to monitor
activities in an ELN,
(b) any function under Division 5 of Part 3.
Division 2 Liability of Registrar
38 Registrar not obliged to monitor ELN or conduct compliance
examination
The Registrar is not obliged:
(a) to monitor activities in an ELN under section 21, or
(b) to conduct or complete a compliance examination
under Division 5 of Part 3.
39 No compensation
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 Division 5 of Part 3, 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 Registrar not responsible for additional services provided by ELNO
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 Registrar responsible for the
regulation or operation of those additional services.
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Division 3 Relationship with other laws
41 Other laws relating to electronic transactions not affected
This Law 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 Law
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 Law.
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Schedule 1 Miscellaneous provisions relating
to interpretation
(Section 4)
Part 1 Preliminary
1 Displacement of Schedule by contrary intention
The application of this Schedule may be displaced, wholly
or partly, by a contrary intention appearing in this Law.
Part 2 General
2 Law to be construed not to exceed legislative power of Legislature
(1) This Law 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 Law, or the application of a provision
of this Law 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 Law, and the application of the
provision to other persons, subject matters or
circumstances, is not affected.
(3) This clause applies to this Law in addition to, and without
limiting the effect of, any provision of this Law.
3 Every section to be a substantive enactment
Every section of this Law has effect as a substantive
enactment without introductory words.
4 Material that is, and is not, part of this Law
(1) The heading to a Part, Division or Subdivision into which
this Law is divided is part of this Law.
(2) A Schedule to this Law is part of this Law.
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(3) Punctuation in this Law is part of this Law.
(4) A heading to a section or subsection of this Law does not
form part of this Law.
(5) Notes included in this Law (including footnotes and
endnotes) do not form part of this Law.
5 References to particular Acts and to enactments
In this Law:
(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
(c) an Act of another jurisdiction may be cited:
(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.
6 References taken to be included in Act or Law citation etc
(1) A reference in this Law 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.
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(2) A reference in this Law to a provision of this Law 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 Law to a
law of the Commonwealth or another jurisdiction as they
apply to a reference in this Law to an Act and to a
provision of an Act.
7 Interpretation best achieving Law's purpose
(1) In the interpretation of a provision of this Law, the
interpretation that will best achieve the purpose or object
of this Law is to be preferred to any other interpretation.
(2) Subclause (1) applies whether or not the purpose is
expressly stated in this Law.
8 Use of extrinsic material in interpretation
(1) In this clause:
extrinsic material means relevant material not forming
part of this Law, including, for example:
(a) material that is set out in the document containing
the text of this Law 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 Law, and
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(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 Law 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 Law and
to the purpose of this Law.
(2) Subject to subclause (3), in the interpretation of a
provision of this Law, 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
(c) in any other case, to confirm the interpretation
conveyed by the ordinary meaning of the provision.
(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
(c) other relevant matters.
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9 Effect of change of drafting practice
If:
(a) a provision of this Law 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.
10 Use of examples
If this Law 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
Law, but, if the example and the provision so read
are inconsistent, the provision prevails.
11 Compliance with forms
(1) If a form is prescribed or approved by or for the purpose of
this Law, 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 Law 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
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(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
12 Definitions
(1) In this Law:
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
(c) amend by implication.
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.
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calendar year means a period of 12 months beginning on
1 January.
commencement, in relation to this Law or an Act or a
provision of this Law or an Act, means the time at which
this Law, 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 Law (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
(c) anything from which sounds, images or writings can
be reproduced with or without the aid of anything
else, 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.
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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.
Gazette notice means notice published in the Gazette.
gazetted means 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 Law, 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 1 of the 12 months of the year.
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Northern Territory means the Northern Territory of
Australia.
number means:
(a) a number expressed in figures or words, or
(b) a letter, or
(c) a combination of a number so expressed and a letter.
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 Law 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 Law or an Act, means words
or other matter that form or forms part of this Law or the
Act, and includes:
(a) a Chapter, Part, Division, Subdivision, section,
subsection, paragraph, subparagraph, sub-
subparagraph or Schedule of or to this Law or the
Act, or
(b) a section, clause, subclause, item, column, table or
form of or in a Schedule to this Law or the Act, or
(c) the long title and any preamble to the Act.
record includes information stored or recorded by means
of a computer.
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repeal includes:
(a) revoke or rescind, or
(b) repeal by implication, or
(c) abrogate or limit the effect of this Law or the
instrument concerned, or
(d) exclude from, or include in, the application of this
Law 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 Law, 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 Law means this Law.
13 Provisions relating to defined terms and gender and number
(1) If this Law 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 Law apply except so far
as the context or subject matter otherwise indicates or
requires.
(3) In this Law, words indicating a gender include each other
gender.
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(4) In this Law:
(a) words in the singular include the plural, and
(b) words in the plural include the singular.
14 Meaning of "may" and "must" etc
(1) In this Law, 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 Law, 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.
15 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
Law, or relevant provisions of this Law, 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.
16 Effect of express references to bodies corporate and individuals
In this Law, 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 Law
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 Law
there is particular reference to an individual
(however expressed).
17 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 Law:
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(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.
18 References to this jurisdiction to be implied
In this Law:
(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.
19 References to officers and holders of offices
In this Law, 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.
20 Reference to certain provisions of Law
If a provision of this Law refers:
(a) to a Part, section or Schedule by a number and
without reference to this Law, the reference is a
reference to the Part, section or Schedule,
designated by the number, of or to this Law, or
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(b) to a Schedule without reference to it by a number
and without reference to this Law, the reference, if
there is only one Schedule to this Law, 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 Law, 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.
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21 Reference to provisions of this Law or an Act is inclusive
In this Law, a reference to a portion of this Law or an Act
includes:
(a) a reference to the Chapter, Part, Division,
Subdivision, section, subsection or other provision
of this Law 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 Law or the Act referred to that forms the end
of the portion.
Example 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
22 Performance of statutory functions
(1) If this Law 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 Law 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 Law 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.
23 Power to make instrument or decision includes power to amend or
repeal
If this Law authorises or requires the making of an
instrument or decision:
(a) the power includes power to amend or repeal the
instrument or decision, and
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(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.
24 Matters for which statutory instruments may make provision
(1) If this Law authorises or requires the making of a statutory
instrument in relation to a matter, a statutory instrument
made under this Law 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, or
(c) otherwise apply generally or be limited in its
application by reference to specified exceptions or
factors.
(4) A statutory instrument may:
(a) apply differently according to different specified
factors, or
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(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 Law 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 Law authorises or requires provision to be made
with respect to a matter by statutory instrument, a statutory
instrument made under this Law may make provision with
respect to a particular aspect of the matter despite the fact
that provision is made by this Law 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 Law, 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.
25 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 Law or a particular
provision of this Law.
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26 Appointments may be made by name or office
(1) If this Law 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
(c) to appoint a person or body to do another thing,
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.
27 Acting appointments
(1) If this Law authorises a person or body to appoint a person
to act in an office, the person or body may, in accordance
with this Law, 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.
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(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
(c) the end of a year from the day of the vacancy,
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 Law 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
(c) the occasion for the person to act had not arisen or
had ceased.
(10) If this Law 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.
28 Powers of appointment imply certain incidental powers
(1) If this Law 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
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(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 Law 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.
29 Delegation of functions
(1) If this Law authorises a person or body to delegate a
function, the person or body may, in accordance with this
Law 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.
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(2) The delegation may be:
(a) general or limited, and
(b) made from time to time, and
(c) revoked, wholly or partly, by the delegator.
(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:
(c) the delegation continues in force, and
(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.
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(10) If:
(a) the delegator is a body, and
(b) there is a change in the membership of the body,
then:
(c) the delegation continues in force, and
(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 Law authorises the delegation of a function, the
function may be subdelegated only if this Law expressly
authorises the function to be subdelegated.
30 Exercise of powers before commencement
(1) If a provision of this Law (the empowering provision) that
has not commenced would, had it commenced, confer a
power:
(a) to make an appointment, or
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(b) to make a statutory instrument of a legislative or
administrative character, or
(c) to do another thing,
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 a New South Wales Act (the empowering
provision) that does not commence on its enactment
would, had it commenced, amend a provision of this Law
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
(c) to do another thing,
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 Law has commenced and confers a power to
make a statutory instrument (the basic statutory
instrument-making power), and
(b) a provision of a New South Wales Act that does not
commence on its enactment would, had it
commenced, amend this Law so as to confer
additional power to make a statutory instrument
(the additional instrument-making power),
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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:
(c) on the making of the instrument, or
(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:
(c) on the commencement of the relevant empowering
provision, or
(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.
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(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
31 Matters relating to distance, time and age
(1) In the measurement of distance for the purposes of this
Law, 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 Law, 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 Law
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 Law
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.
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(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 Law, 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 Law, 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
32 Time of Law ceasing to have effect
If a provision of this Law 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.
33 Repealed Law provisions not revived
If a provision of this Law is repealed or amended by a New
South Wales Act, or a provision of a New South Wales
Act, the provision is not revived merely because the New
South Wales Act or the provision of the New South Wales
Act:
(a) is later repealed or amended, or
(b) later expires.
34 Saving of operation of repealed Law provisions
(1) The repeal, amendment or expiry of a provision of this
Law 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
(c) affect a right, privilege or liability acquired, accrued
or incurred under the provision, or
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(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.
35 Continuance of repealed provisions
If a New South Wales Act repeals some provisions of this
Law and enacts new provisions in substitution for the
repealed provisions, the repealed provisions continue in
force until the new provisions commence.
36 Law and amending Acts to be read as one
This Law and all New South Wales Acts amending this
Law are to be read as one.
Part 7 Instruments under Law
37 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
Law, and things that may be done or are required to be
done under this Law, 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 Law
and not also to a statutory instrument does not, by itself,
indicate that the provision is intended to apply only to this
Law.
By Authority. Government Printer for the State of Victoria.
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