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Queensland
Electronic Conveyancing
National Law (Queensland)
Bill 2012
Queensland
Electronic Conveyancing National Law
(Queensland) Bill 2012
Contents
Page
Part 1 Preliminary
1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Part 2 Application of Electronic Conveyancing National Law
4 Application of Electronic Conveyancing National Law . . . . . . . . . 7
5 Minister must table amendments of Electronic Conveyancing
National Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
6 Meaning of generic terms in Electronic Conveyancing National
Law for the purposes of this jurisdiction . . . . . . . . . . . . . . . . . . . . 7
7 Responsible tribunal for Electronic Conveyancing National Law
(Queensland) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
8 Exclusion of interpretation legislation of this jurisdiction . . . . . . . 10
Part 3 Provision specific to this jurisdiction
9 Review of decision by QCAT as responsible tribunal . . . . . . . . . . 10
Part 4 Miscellaneous
10 Regulation-making power. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Part 5 Amendment of Acts
Division 1 Amendment of this Act
11 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
12 Amendment of long title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Division 2 Amendment of Land Act 1994
13 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
14 Amendment of s 286A (Land practice manual) . . . . . . . . . . . . . . 11
15 Amendment of s 287 (Registered documents must comply with
particular requirements) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
16 Amendment of s 288 (Certain documents must be signed) . . . . . 12
Electronic Conveyancing National Law (Queensland) Bill 2012
Contents
17 Amendment of s 288A (Original mortgagee to confirm identity of
mortgagor) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
18 Amendment of s 288B (Mortgage transferee to confirm identity
of mortgagor) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
19 Replacement of ss 289 and 290. . . . . . . . . . . . . . . . . . . . . . . . . . 14
289 Giving consent for dealings . . . . . . . . . . . . . . . . . . . . 14
20 Renumbering of s 290AA (Offence not to use appropriate form) . 15
21 Insertion of new ch 6, pt 1, div 3D . . . . . . . . . . . . . . . . . . . . . . . . 15
Division 3D Electronic conveyancing documents
290O Reference to a particular type of document includes
its electronic conveyancing form. . . . . . . . . . . . . . . . . 15
290P What is an electronic conveyancing document. . . . . . 15
290Q Signing or executing an electronic conveyancing
document ............................. 16
22 Amendment of s 305 (Requisitions) . . . . . . . . . . . . . . . . . . . . . . . 16
23 Amendment of s 306 (Rejecting document for failure to comply
with requisition) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
24 Amendment of s 307 (Borrowing lodged document before
registration) ..................................... 17
25 Amendment of s 310 (Execution of documents). . . . . . . . . . . . . . 18
26 Replacement of s 313 (Delivery of documents) . . . . . . . . . . . . . . 18
313 Delivery of paper documents . . . . . . . . . . . . . . . . . . . 18
27 Amendment of s 314 (Dispensing with production of document) . 18
28 Amendment of s 322A (Severing joint tenancy by transfer) . . . . . 19
29 Amendment of sch 6 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 19
Division 3 Amendment of Land Title Act 1994
30 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
31 Amendment of s 9A (Land title practice manual) . . . . . . . . . . . . . 21
32 Amendment of s 10 (Form of instruments). . . . . . . . . . . . . . . . . . 21
33 Amendment of s 11 (Execution of certain instruments) . . . . . . . . 21
34 Amendment of s 11A (Original mortgagee to confirm identity of
mortgagor) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
35 Amendment of s 11B (Mortgage transferee to confirm identity of
mortgagor) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
36 Replacement of ss 12 and 13. . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
12 Giving consent for dealings . . . . . . . . . . . . . . . . . . . . 23
37 Insertion of new pt 2, div 2A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Division 2A Electronic conveyancing documents
Page 2
Electronic Conveyancing National Law (Queensland) Bill 2012
Contents
14A Reference to a particular type of document includes
its electronic conveyancing form. . . . . . . . . . . . . . . . . 25
14B What is an electronic conveyancing document. . . . . . 25
14C Signing or executing an electronic conveyancing
document .............................. 25
38 Amendment of s 42 (Issuing of certificates of title). . . . . . . . . . . . 26
39 Amendment of s 44 (Note about issue of certificate of title etc.) . 26
40 Amendment of s 50 (Requirements for registration of plan of
subdivision) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
41 Amendment of s 59 (Severing joint tenancy) . . . . . . . . . . . . . . . . 26
42 Amendment of s 155 (Correcting unregistered instruments) . . . . 27
43 Amendment of s 156 (Requisitions) . . . . . . . . . . . . . . . . . . . . . . . 27
44 Amendment of s 157 (Rejecting instrument for failure to comply
with requisition) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
45 Amendment of s 158 (Borrowing lodged instrument before
registration) ...................................... 28
46 Amendment of s 161 (Execution and proof) . . . . . . . . . . . . . . . . . 29
47 Amendment of s 164 (Dispensing with production of instrument) 29
48 Amendment of s 185 (Exceptions to s 184) . . . . . . . . . . . . . . . . . 30
49 Replacement of s 198 (Delivery) . . . . . . . . . . . . . . . . . . . . . . . . . 30
198 Delivery of paper documents . . . . . . . . . . . . . . . . . . . 30
50 Amendment of sch 2 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 31
Page 3
2012
A Bill
for
An Act to adopt in Queensland a national law relating to
electronic conveyancing and to amend this Act, the Land Act
1994 and the Land Title Act 1994 for particular purposes
Electronic Conveyancing National Law (Queensland) Bill 2012
Part 1 Preliminary
[s 1]
The Parliament of Queensland enacts-- 1
Part 1 Preliminary 2
1 Short title 3
This Act may be cited as the Electronic Conveyancing 4
National Law (Queensland) Act 2012. 5
2 Commencement 6
(1) This Act, other than sections 38 and 39, commences on a day 7
or days to be fixed by proclamation. 8
(2) Different days may be appointed under subsection (1) for the 9
commencement of different provisions of the Electronic 10
Conveyancing National Law set out in the appendix to the 11
Electronic Conveyancing (Adoption of National Law) Act 12
2012 of New South Wales. 13
(3) The Acts Interpretation Act 1954, section 15DA does not 14
apply to this Act. 15
3 Definitions 16
(1) For the purposes of this Act, the local application provisions 17
of this Act are the provisions of this Act other than the 18
Electronic Conveyancing National Law (Queensland). 19
(2) In the local application provisions of this Act-- 20
Electronic Conveyancing National Law (Queensland) means 21
the provisions applying in this jurisdiction because of section 22
4. 23
(3) Terms used in the local application provisions of this Act and 24
also in the Electronic Conveyancing National Law set out in 25
the appendix to the Electronic Conveyancing (Adoption of 26
Page 6
Electronic Conveyancing National Law (Queensland) Bill 2012
Part 2 Application of Electronic Conveyancing National Law
[s 4]
National Law) Act 2012 of New South Wales have the same 1
meanings in this Act as they have in that Law. 2
Part 2 Application of Electronic 3
Conveyancing National Law 4
4 Application of Electronic Conveyancing National Law 5
The Electronic Conveyancing National Law, as in force from 6
time to time, set out in the appendix to the Electronic 7
Conveyancing (Adoption of National Law) Act 2012 of New 8
South Wales-- 9
(a) applies as a law of this jurisdiction; and 10
(b) as so applying may be referred to as the Electronic 11
Conveyancing National Law (Queensland); and 12
(c) so applies as if it were part of this Act. 13
5 Minister must table amendments of Electronic 14
Conveyancing National Law 15
(1) This section applies if the Electronic Conveyancing National 16
Law set out in the appendix to the Electronic Conveyancing 17
(Adoption of National Law) Act 2012 of New South Wales is 18
amended. 19
(2) The Minister must table a copy of the amendment in the 20
Legislative Assembly. 21
(3) Failure to comply with subsection (2) does not affect the 22
application of the amendment under section 4. 23
6 Meaning of generic terms in Electronic Conveyancing 24
National Law for the purposes of this jurisdiction 25
In the Electronic Conveyancing National Law 26
(Queensland)-- 27
Page 7
Electronic Conveyancing National Law (Queensland) Bill 2012
Part 2 Application of Electronic Conveyancing National Law
[s 6]
land titles legislation means any of the following-- 1
(a) the Body Corporate and Community Management Act 2
1997; 3
(b) the Building Units and Group Titles Act 1980; 4
(c) the Integrated Resort Development Act 1987; 5
(d) the Land Act 1994; 6
(e) the Land Title Act 1994; 7
(f) the Mixed Use Development Act 1993; 8
(g) the Registration of Plans (H.S.P. (Nominees) Pty. 9
Limited) Enabling Act 1980; 10
(h) the Registration of Plans (Stage 2) (H.S.P. (Nominees) 11
Pty. Limited) Enabling Act 1984; 12
(i) the Sanctuary Cove Resort Act 1985; 13
(j) the South Bank Corporation Act 1989; 14
(k) the Water Act 2000; 15
(l) any other Act prescribed under a regulation for this 16
definition; 17
(m) a regulation made under an Act mentioned in any of 18
paragraphs (a) to (k) or prescribed under paragraph (l); 19
(n) any other law of this jurisdiction that authorises or 20
requires something to be deposited, registered, noted or 21
recorded in a titles register. 22
Registrar means-- 23
(a) for approving the form of a document under section 7 of 24
the Electronic Conveyancing National Law 25
(Queensland), or receiving or processing a document 26
under section 8 of the Law, for the purposes of-- 27
(i) the Land Act 1994--the chief executive of the 28
department in which that Act is administered; or 29
Page 8
Electronic Conveyancing National Law (Queensland) Bill 2012
Part 2 Application of Electronic Conveyancing National Law
[s 7]
(ii) the Water Act 2000, chapter 2, part 4, division 1
6--the registrar of water allocations under section 2
147 of that Act; or 3
(b) otherwise--the registrar of titles under the Land Title 4
Act 1994. 5
registry instrument means any document that may be lodged 6
under the land titles legislation for-- 7
(a) creating, transferring, disposing of, mortgaging, 8
charging, leasing or dealing with in any other way an 9
estate or interest in land or a water allocation; or 10
(b) getting something registered, noted or recorded in the 11
titles register; or 12
(c) getting the registration, note or record of something in 13
the titles register changed, withdrawn or removed. 14
this jurisdiction means Queensland. 15
titles register means-- 16
(a) any of the registers kept under-- 17
(i) the Land Title Act 1994, section 7; or 18
(ii) the Land Act 1994, section 276; or 19
(b) the water allocations register kept under the Water Act 20
2000, section 148; or 21
(c) any other register prescribed under a regulation for this 22
definition. 23
7 Responsible tribunal for Electronic Conveyancing 24
National Law (Queensland) 25
QCAT is the responsible tribunal for this jurisdiction for the 26
purposes of the Electronic Conveyancing National Law 27
(Queensland). 28
Page 9
Electronic Conveyancing National Law (Queensland) Bill 2012
Part 3 Provision specific to this jurisdiction
[s 8]
8 Exclusion of interpretation legislation of this jurisdiction 1
The Acts Interpretation Act 1954 does not apply to the 2
Electronic Conveyancing National Law (Queensland) or to 3
instruments made under that Law. 4
Part 3 Provision specific to this 5
jurisdiction 6
9 Review of decision by QCAT as responsible tribunal 7
A reference in the Electronic Conveyancing National Law 8
(Queensland) to an appeal against a decision is, for an appeal 9
to QCAT as the responsible tribunal, a reference to a review of 10
the decision as provided under the QCAT Act. 11
Part 4 Miscellaneous 12
10 Regulation-making power 13
The Governor in Council may make regulations under this 14
Act. 15
Part 5 Amendment of Acts 16
Division 1 Amendment of this Act 17
11 Act amended 18
This division amends this Act. 19
Page 10
Electronic Conveyancing National Law (Queensland) Bill 2012
Part 5 Amendment of Acts
[s 12]
12 Amendment of long title 1
Long title, from `conveyancing'-- 2
omit, insert-- 3
`conveyancing'. 4
Division 2 Amendment of Land Act 1994 5
13 Act amended 6
This division amends the Land Act 1994. 7
14 Amendment of s 286A (Land practice manual) 8
(1) Section 286A(5), `subsection (4)'-- 9
omit, insert-- 10
`subsection (5)'. 11
(2) Section 286A(4) and (5)-- 12
renumber as section 286A(5) and (6). 13
(3) Section 286A-- 14
insert-- 15
`(4) The manual may provide for the chief executive's approval of 16
the form of an electronic conveyancing document for the 17
Electronic Conveyancing National Law (Queensland), section 18
7(1)(a).'. 19
15 Amendment of s 287 (Registered documents must 20
comply with particular requirements) 21
(1) Section 287(1)(b)(i), `filled in'-- 22
omit, insert-- 23
`completed'. 24
(2) Section 287-- 25
Page 11
Electronic Conveyancing National Law (Queensland) Bill 2012
Part 5 Amendment of Acts
[s 16]
insert-- 1
`(4) Subsections (2) and (3) do not apply to an electronic 2
conveyancing document.'. 3
16 Amendment of s 288 (Certain documents must be signed) 4
Section 288-- 5
insert-- 6
`(3) For a document that is an electronic conveyancing document, 7
subsections (1) and (2) apply subject to the form approved for 8
the document under the Electronic Conveyancing National 9
Law (Queensland), section 7.'. 10
17 Amendment of s 288A (Original mortgagee to confirm 11
identity of mortgagor) 12
(1) Section 288A(2), `the person who executed the mortgage or 13
amendment as mortgagor'-- 14
omit, insert-- 15
`the person who is the mortgagor under the mortgage or 16
amendment'. 17
(2) Section 288A-- 18
insert-- 19
`(2A) For subsection (2), a person is the mortgagor under a 20
mortgage or amendment of mortgage if the person executes 21
the mortgage or amendment as mortgagor, including, if the 22
mortgage or amendment is an electronic conveyancing 23
document, through a subscriber digitally signing the 24
document under the Electronic Conveyancing National Law 25
(Queensland). 26
`(2B) Also, for subsection (2), a person is the mortgagor under a 27
mortgage or amendment of mortgage if the mortgage or 28
amendment is an electronic conveyancing document and the 29
person signs, as mortgagor, a document that under the 30
Page 12
Electronic Conveyancing National Law (Queensland) Bill 2012
Part 5 Amendment of Acts
[s 18]
participation rules under the Electronic Conveyancing 1
National Law (Queensland)-- 2
(a) is required as a supporting document for the mortgage 3
or amendment of mortgage; and 4
(b) is required to be kept by the original mortgagee.'. 5
18 Amendment of s 288B (Mortgage transferee to confirm 6
identity of mortgagor) 7
(1) Section 288B(2), from `the person who executed' to `about to 8
become,'-- 9
omit, insert-- 10
`the person who was the mortgagor under the mortgage was 11
identical with the person who, when the mortgage was 12
registered, was'. 13
(2) Section 288B-- 14
insert-- 15
`(2A) For subsection (2), a person was the mortgagor under a 16
mortgage if the person executed the mortgage as mortgagor, 17
including, if the mortgage is an electronic conveyancing 18
document, through a subscriber digitally signing the 19
document under the Electronic Conveyancing National Law 20
(Queensland). 21
`(2B) Also, for subsection (2), a person was the mortgagor under a 22
mortgage if the mortgage is an electronic conveyancing 23
document and the person signed, as mortgagor, a document 24
that under the participation rules under the Electronic 25
Conveyancing National Law (Queensland)-- 26
(a) was required as a supporting document for the 27
mortgage; and 28
(b) was required to be kept by the original mortgagee 29
mentioned in section 288A(2).'. 30
Page 13
Electronic Conveyancing National Law (Queensland) Bill 2012
Part 5 Amendment of Acts
[s 19]
19 Replacement of ss 289 and 290 1
Sections 289 and 290-- 2
omit, insert-- 3
`289 Giving consent for dealings 4
`(1) Subject to subsections (2) to (4), if the consent of a person is 5
required or permitted for a dealing with a lease, sublease or 6
licence, the consent must be-- 7
(a) written on the document for the dealing (the relevant 8
document); or 9
(b) if the chief executive considers it 10
appropriate--deposited with the relevant document. 11
`(2) If the relevant document is an electronic conveyancing 12
document, the person is taken to have complied with 13
subsection (1) if the consent-- 14
(a) is in the form of an electronic conveyancing document; 15
and 16
(b) is deposited with the relevant document. 17
`(3) Subsection (4) applies if the relevant document is lodged or 18
deposited in an electronic form by an electronic 19
communication under-- 20
(a) this Act or another law, other than the Electronic 21
Conveyancing National Law (Queensland); and 22
(b) the Electronic Transactions (Queensland) Act 2001. 23
`(4) The person is taken to have complied with subsection (1) if-- 24
(a) a method is used to identify the person and to indicate 25
the person's consent; and 26
(b) having regard to all the relevant circumstances when the 27
method was used, the method was as reliable as was 28
appropriate for the purposes for which the consent was 29
communicated; and 30
(c) the chief executive consents to the requirement being 31
met by using the method.'. 32
Page 14
Electronic Conveyancing National Law (Queensland) Bill 2012
Part 5 Amendment of Acts
[s 20]
20 Renumbering of s 290AA (Offence not to use appropriate 1
form) 2
Section 290AA-- 3
renumber as section 290. 4
21 Insertion of new ch 6, pt 1, div 3D 5
After section 290N-- 6
insert-- 7
`Division 3D Electronic conveyancing 8
documents 9
`290O Reference to a particular type of document includes 10
its electronic conveyancing form 11
`A reference in this Act to a document of a type that may be 12
lodged or deposited under this Act includes a reference to the 13
document in the form of an electronic conveyancing 14
document. 15
`290P What is an electronic conveyancing document 16
`(1) An electronic conveyancing document is a document under 17
the Electronic Conveyancing National Law (Queensland) 18
that-- 19
(a) is of a type mentioned in schedule 6, definition 20
document, paragraphs (a) to (g); and 21
(b) is lodged electronically under section 7 of the Law, in 22
the land registry. 23
Note-- 24
Under the Electronic Conveyancing National Law (Queensland), 25
schedule 1, section 12(1), definition document, a document includes any 26
record of information that exists in a digital form and is capable of being 27
reproduced, transmitted, stored and duplicated by electronic means. 28
Page 15
Electronic Conveyancing National Law (Queensland) Bill 2012
Part 5 Amendment of Acts
[s 22]
`(2) Subsection (3) applies to a document that is lodged or 1
deposited in an electronic form by an electronic 2
communication under-- 3
(a) this Act or another law, other than the Electronic 4
Conveyancing National Law (Queensland); and 5
(b) the Electronic Transactions (Queensland) Act 2001. 6
`(3) To remove any doubt, it is declared that the document is not 7
an electronic conveyancing document. 8
`290Q Signing or executing an electronic conveyancing 9
document 10
`If this Act provides for a document to be signed or executed 11
and the document is an electronic conveyancing document, 12
the document must be digitally signed as provided for under 13
the Electronic Conveyancing National Law (Queensland).'. 14
22 Amendment of s 305 (Requisitions) 15
Section 305(3)-- 16
omit, insert-- 17
`(3) The requisition may-- 18
(a) state when, and where, it must be complied with; and 19
(b) if it relates to an electronic conveyancing document, be 20
accompanied by a copy of the document.'. 21
23 Amendment of s 306 (Rejecting document for failure to 22
comply with requisition) 23
(1) Section 306(2)-- 24
omit, insert-- 25
`(2) A document rejected under subsection (1) loses its priority 26
under section 298. 27
`(2A) If the chief executive rejects a document under subsection (1) 28
the chief executive must-- 29
Page 16
Electronic Conveyancing National Law (Queensland) Bill 2012
Part 5 Amendment of Acts
[s 24]
(a) give a written notice of the rejection to the person to 1
whom the chief executive gave the requisition for the 2
document; and 3
(b) if the document is in paper form--return the document 4
to the person who lodged or deposited it.'. 5
(2) Section 306(3), `or in'-- 6
omit, insert-- 7
`or recorded in'. 8
(3) Section 306-- 9
insert-- 10
`(3A) An electronic conveyancing document that has been rejected 11
under subsection (1) can not be relodged.'. 12
(4) Section 306(4), `This section'-- 13
omit, insert-- 14
`Subject to subsection (5), this section'. 15
(5) Section 306(2A) to (4)-- 16
renumber as section 306(3) to (6). 17
24 Amendment of s 307 (Borrowing lodged document before 18
registration) 19
(1) Section 307, heading, after `lodged'-- 20
insert-- 21
`or deposited'. 22
(2) Section 307(1)-- 23
omit, insert-- 24
`(1) The chief executive may permit any of the following persons 25
to borrow a document lodged or deposited in paper form 26
before the document is registered or used for the purpose for 27
which it was deposited-- 28
(a) the person who lodged or deposited the document; 29
Page 17
Electronic Conveyancing National Law (Queensland) Bill 2012
Part 5 Amendment of Acts
[s 25]
(b) a person for whom the document was lodged or 1
deposited; 2
(c) an agent of a person mentioned in paragraph (a) or (b).'. 3
25 Amendment of s 310 (Execution of documents) 4
Section 310, at the end-- 5
insert-- 6
`Note-- 7
Under the Electronic Conveyancing National Law (Queensland), section 8
9(3)(b), if a registry instrument is digitally signed in accordance with 9
the participation rules applicable to the instrument, the requirements of 10
any other Queensland law relating to the execution, signing, witnessing, 11
attestation or sealing of documents must be regarded as having been 12
fully satisfied.'. 13
26 Replacement of s 313 (Delivery of documents) 14
Section 313-- 15
omit, insert-- 16
`313 Delivery of paper documents 17
`(1) This section applies if the chief executive is required or 18
permitted to return-- 19
(a) a document that has been lodged or deposited in paper 20
form; or 21
(b) a document in paper form that is a representation of an 22
electronic conveyancing document. 23
`(2) The chief executive may return the document by leaving it at a 24
place designated for the purpose in the land registry.'. 25
27 Amendment of s 314 (Dispensing with production of 26
document) 27
(1) Section 314, heading, `document'-- 28
omit, insert-- 29
Page 18
Electronic Conveyancing National Law (Queensland) Bill 2012
Part 5 Amendment of Acts
[s 28]
`paper document'. 1
(2) Section 314(1), `document'-- 2
omit, insert-- 3
`document in paper form'. 4
28 Amendment of s 322A (Severing joint tenancy by 5
transfer) 6
Section 322A(4)-- 7
omit, insert-- 8
`(4) The chief executive may register the transfer only if the chief 9
executive is satisfied the severing party has given each other 10
joint tenant written notice of the severing party's intention to 11
sever the joint tenancy under subsection (2).'. 12
29 Amendment of sch 6 (Dictionary) 13
(1) Schedule 6, definition approved form-- 14
omit. 15
(2) Schedule 6-- 16
insert-- 17
`approved form means-- 18
(a) for an electronic conveyancing document--a form 19
approved by the chief executive under the Electronic 20
Conveyancing National Law (Queensland), section 7; or 21
(b) otherwise--a form approved by the chief executive 22
under section 444 for use under this Act. 23
copy, of a document, if the document is an electronic 24
conveyancing document, means-- 25
(a) a representation of the document in paper form; or 26
(b) a reproduction or representation of the document in 27
digital form. 28
electronic conveyancing document see section 290P. 29
Page 19
Electronic Conveyancing National Law (Queensland) Bill 2012
Part 5 Amendment of Acts
[s 29]
Electronic Conveyancing National Law (Queensland) see 1
the Electronic Conveyancing National Law (Queensland) Act 2
2012, section 4. 3
endorse, in relation to endorsing information on a document, 4
if the document is an electronic conveyancing document, 5
means record the information in electronic form as part of the 6
document in such a way that it is reasonable to expect the 7
information will be readily accessible as part of the document 8
so as to be useable for subsequent reference. 9
file, a document, if the document is an electronic 10
conveyancing document, means lodge the document 11
electronically under the Electronic Conveyancing National 12
Law (Queensland), section 7. 13
note, in relation to noting particular information on a 14
document, if the document is an electronic conveyancing 15
document, means record the information in electronic form as 16
part of the document in such a way that it is reasonable to 17
expect the information will be readily accessible as part of the 18
document so as to be useable for subsequent reference.'. 19
(3) Schedule 6, definition deposit-- 20
insert-- 21
`Note-- 22
For filing an electronic conveyancing document, see the definition file.'. 23
(4) Schedule 6, definition document-- 24
insert-- 25
`(h) an electronic conveyancing document.'. 26
(5) Schedule 6, definition lodge-- 27
insert-- 28
`Note-- 29
For filing an electronic conveyancing document, see the definition file.'. 30
Page 20
Electronic Conveyancing National Law (Queensland) Bill 2012
Part 5 Amendment of Acts
[s 30]
Division 3 Amendment of Land Title Act 1994 1
30 Act amended 2
This division amends the Land Title Act 1994. 3
31 Amendment of s 9A (Land title practice manual) 4
(1) Section 9A(5), `subsection (4)'-- 5
omit, insert-- 6
`subsection (5)'. 7
(2) Section 9A(4) and (5)-- 8
renumber as section 9A(5) and (6). 9
(3) Section 9A-- 10
insert-- 11
`(4) The manual may provide for the registrar's approval of the 12
form of an electronic conveyancing document for the 13
Electronic Conveyancing National Law (Queensland), section 14
7(1)(a).'. 15
32 Amendment of s 10 (Form of instruments) 16
(1) Section 10(1)(b)(i), `filled in'-- 17
omit, insert-- 18
`completed'. 19
(2) Section 10-- 20
insert-- 21
`(5) Subsections (3) and (4) do not apply to an instrument that is 22
an electronic conveyancing document.'. 23
33 Amendment of s 11 (Execution of certain instruments) 24
Section 11-- 25
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Part 5 Amendment of Acts
[s 34]
insert-- 1
`(3) For an instrument that is an electronic conveyancing 2
document, subsections (1) and (2) apply subject to the form 3
approved for the instrument under the Electronic 4
Conveyancing National Law (Queensland), section 7.'. 5
34 Amendment of s 11A (Original mortgagee to confirm 6
identity of mortgagor) 7
(1) Section 11A(2), `the person who executed the instrument as 8
mortgagor'-- 9
omit, insert-- 10
`the person who is the mortgagor under the instrument'. 11
(2) Section 11A-- 12
insert-- 13
`(2A) For subsection (2), a person is the mortgagor under an 14
instrument of mortgage or amendment of mortgage if the 15
person executes the instrument as mortgagor, including, if the 16
instrument is an electronic conveyancing document, through a 17
subscriber digitally signing the instrument under the 18
Electronic Conveyancing National Law (Queensland). 19
`(2B) Also, for subsection (2), a person is the mortgagor under an 20
instrument of mortgage or amendment of mortgage if the 21
instrument is an electronic conveyancing document and the 22
person signs, as mortgagor, a document that under the 23
participation rules under the Electronic Conveyancing 24
National Law (Queensland)-- 25
(a) is required as a supporting document for the instrument 26
of mortgage or amendment of mortgage; and 27
(b) is required to be kept by the original mortgagee.'. 28
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Part 5 Amendment of Acts
[s 35]
35 Amendment of s 11B (Mortgage transferee to confirm 1
identity of mortgagor) 2
(1) Section 11B(2), from `the person who executed' to `about to 3
become,'-- 4
omit, insert-- 5
`the person who was the mortgagor under the instrument of 6
mortgage was identical with the person who, when the 7
instrument of mortgage was registered, was'. 8
(2) Section 11B-- 9
insert-- 10
`(2A) For subsection (2), a person was the mortgagor under an 11
instrument of mortgage if the person executed the instrument 12
as mortgagor, including, if the instrument is an electronic 13
conveyancing document, through a subscriber digitally 14
signing the instrument under the Electronic Conveyancing 15
National Law (Queensland). 16
`(2B) Also, for subsection (2), a person was the mortgagor under an 17
instrument of mortgage if the instrument is an electronic 18
conveyancing document and the person signed, as mortgagor, 19
a document that under the participation rules under the 20
Electronic Conveyancing National Law (Queensland)-- 21
(a) was required as a supporting document for the 22
instrument of mortgage; and 23
(b) was required to be kept by the original mortgagee 24
mentioned in section 11A(2).'. 25
36 Replacement of ss 12 and 13 26
Sections 12 and 13-- 27
omit, insert-- 28
`12 Giving consent for dealings 29
`(1) Subject to subsections (2) to (4), if the consent of a person is 30
required or permitted for a dealing with a lot, the consent must 31
be-- 32
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Part 5 Amendment of Acts
[s 37]
(a) written on the instrument for the dealing (the relevant 1
instrument); or 2
(b) if the registrar considers it appropriate--deposited with 3
the relevant instrument. 4
`(2) If the relevant instrument is an electronic conveyancing 5
document, the person is taken to have complied with 6
subsection (1) if the consent-- 7
(a) is in the form of an electronic conveyancing document; 8
and 9
(b) is deposited with the relevant instrument. 10
`(3) Subsection (4) applies if the relevant instrument is lodged or 11
deposited in an electronic form by an electronic 12
communication under-- 13
(a) this Act or another law, other than the Electronic 14
Conveyancing National Law (Queensland); and 15
(b) the Electronic Transactions (Queensland) Act 2001. 16
`(4) The person is taken to have complied with subsection (1) if-- 17
(a) a method is used to identify the person and to indicate 18
the person's consent; and 19
(b) having regard to all the relevant circumstances when the 20
method was used, the method was as reliable as was 21
appropriate for the purposes for which the consent was 22
communicated; and 23
(c) the registrar consents to the requirement being met by 24
using the method.'. 25
37 Insertion of new pt 2, div 2A 26
After section 14-- 27
insert-- 28
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Electronic Conveyancing National Law (Queensland) Bill 2012
Part 5 Amendment of Acts
[s 37]
`Division 2A Electronic conveyancing 1
documents 2
`14A Reference to a particular type of document includes 3
its electronic conveyancing form 4
`A reference in this Act to a document of a type that may be 5
lodged or deposited under this Act includes a reference to the 6
document in the form of an electronic conveyancing 7
document. 8
`14B What is an electronic conveyancing document 9
`(1) An electronic conveyancing document is a document under 10
the Electronic Conveyancing National Law (Queensland) that 11
is lodged electronically under section 7 of that Law, in the 12
land registry. 13
Note-- 14
Under the Electronic Conveyancing National Law (Queensland), 15
schedule 1, section 12(1), definition document, a document includes any 16
record of information that exists in a digital form and is capable of being 17
reproduced, transmitted, stored and duplicated by electronic means. 18
`(2) Subsection (3) applies to a document that is lodged or 19
deposited in an electronic form by an electronic 20
communication under-- 21
(a) this Act or another law, other than the Electronic 22
Conveyancing National Law (Queensland); and 23
(b) the Electronic Transactions (Queensland) Act 2001. 24
`(3) To remove any doubt, it is declared that the document is not 25
an electronic conveyancing document. 26
`14C Signing or executing an electronic conveyancing 27
document 28
`If this Act provides for a document to be signed or executed 29
and the document is an electronic conveyancing document, 30
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Electronic Conveyancing National Law (Queensland) Bill 2012
Part 5 Amendment of Acts
[s 38]
the document must be digitally signed as provided for under 1
the Electronic Conveyancing National Law (Queensland).'. 2
38 Amendment of s 42 (Issuing of certificates of title) 3
(1) Section 42(1), `must'-- 4
omit, insert-- 5
`may'. 6
(2) Section 42(4), `The registrar'-- 7
omit, insert-- 8
`If the registrar issues a certificate of title, the registrar'. 9
39 Amendment of s 44 (Note about issue of certificate of title 10
etc.) 11
(1) Section 44, heading, `Note about'-- 12
omit, insert-- 13
`Record of'. 14
(2) Section 44(a), `make a note'-- 15
omit, insert-- 16
`record'. 17
40 Amendment of s 50 (Requirements for registration of plan 18
of subdivision) 19
Section 50(2)(a), after `endorsed with'-- 20
insert-- 21
`or accompanied by'. 22
41 Amendment of s 59 (Severing joint tenancy) 23
Section 59(2)-- 24
omit, insert-- 25
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Electronic Conveyancing National Law (Queensland) Bill 2012
Part 5 Amendment of Acts
[s 42]
`(2) However, the registrar may register the instrument of transfer 1
only if the registrar is satisfied the registered owner has given 2
each other joint tenant written notice of the registered owner's 3
intention to sever the joint tenancy under subsection (1).'. 4
42 Amendment of s 155 (Correcting unregistered 5
instruments) 6
Section 155(1), after `survey'-- 7
insert-- 8
`that is in paper form'. 9
43 Amendment of s 156 (Requisitions) 10
Section 156(3)-- 11
omit, insert-- 12
`(3) The requisition may-- 13
(a) state when, and where, it must be complied with; and 14
(b) if it relates to an electronic conveyancing document, be 15
accompanied by a copy of the document.'. 16
44 Amendment of s 157 (Rejecting instrument for failure to 17
comply with requisition) 18
(1) Section 157, heading, after `instrument'-- 19
insert-- 20
`or document'. 21
(2) Section 157(2)-- 22
omit, insert-- 23
`(2) An instrument rejected under subsection (1) loses its priority 24
under section 178. 25
`(2A) If the registrar rejects an instrument or document under 26
subsection (1) the registrar must-- 27
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Electronic Conveyancing National Law (Queensland) Bill 2012
Part 5 Amendment of Acts
[s 45]
(a) give a written notice of the rejection to the person to 1
whom the registrar gave the requisition for the 2
instrument or document; and 3
(b) if the instrument or document is in paper form--return 4
the instrument or document to the person who lodged or 5
deposited it.'. 6
(3) Section 157(3), `or in'-- 7
omit, insert-- 8
`or recorded in'. 9
(4) Section 157-- 10
insert-- 11
`(3A) An electronic conveyancing document that has been rejected 12
under subsection (1) can not be relodged.'. 13
(5) Section 157(4), `This section'-- 14
omit, insert-- 15
`Subject to subsection (5), this section'. 16
(6) Section 157(2A) to (4)-- 17
renumber as section 157(3) to (6). 18
45 Amendment of s 158 (Borrowing lodged instrument 19
before registration) 20
(1) Section 158, heading, after `lodged'-- 21
insert-- 22
`or deposited'. 23
(2) Section 158(1)-- 24
omit, insert-- 25
`(1) The registrar may permit any of the following persons to 26
borrow an instrument lodged or deposited in paper form 27
before the instrument is registered or used for the purpose for 28
which it was deposited-- 29
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Part 5 Amendment of Acts
[s 46]
(a) the person who lodged or deposited the instrument; 1
(b) a person for whom the instrument was lodged or 2
deposited; 3
(c) an agent of a person mentioned in paragraph (a) or (b).'. 4
46 Amendment of s 161 (Execution and proof) 5
Section 161, at the end-- 6
insert-- 7
`Note-- 8
Under the Electronic Conveyancing National Law (Queensland), section 9
9(3)(b), if a registry instrument is digitally signed in accordance with 10
the participation rules applicable to the instrument, the requirements of 11
any other Queensland law relating to the execution, signing, witnessing, 12
attestation or sealing of documents must be regarded as having been 13
fully satisfied.'. 14
47 Amendment of s 164 (Dispensing with production of 15
instrument) 16
(1) Section 164, heading, `instrument'-- 17
omit, insert-- 18
`paper instrument'. 19
(2) Section 164(1), `instrument'-- 20
omit, insert-- 21
`paper instrument'. 22
(3) Section 164(3)-- 23
renumber as section 164(4). 24
(4) Section 164-- 25
insert-- 26
`(3) Also, the registrar may dispense with the production of a 27
certificate of title of a lot if the registrar is satisfied the 28
certificate of title is held by a registered mortgagee of the lot.'. 29
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Electronic Conveyancing National Law (Queensland) Bill 2012
Part 5 Amendment of Acts
[s 48]
48 Amendment of s 185 (Exceptions to s 184) 1
(1) Section 185(1A)(b)-- 2
omit, insert-- 3
`(b) the person who was the mortgagor under the instrument 4
of mortgage or amendment of mortgage was not the 5
person who was, or who was about to become, the 6
registered proprietor of the lot or the interest in a lot for 7
which the instrument was registered.'. 8
(2) Section 185-- 9
insert-- 10
`(1B) For subsection (1A)(b), a person was the mortgagor under an 11
instrument of mortgage or amendment of mortgage if the 12
person executed the instrument as mortgagor, including, if the 13
instrument is an electronic conveyancing document, through a 14
subscriber digitally signing the instrument under the 15
Electronic Conveyancing National Law (Queensland). 16
`(1C) Also, for subsection (1A)(b), a person was the mortgagor 17
under an instrument of mortgage or amendment of mortgage 18
if the instrument is an electronic conveyancing document and 19
the person signed, as mortgagor, a document that under the 20
participation rules under the Electronic Conveyancing 21
National Law (Queensland)-- 22
(a) was required as a supporting document for the 23
instrument of mortgage or amendment of mortgage; and 24
(b) was required to be kept by the original mortgagee 25
mentioned in section 11A(2).'. 26
49 Replacement of s 198 (Delivery) 27
Section 198-- 28
omit, insert-- 29
`198 Delivery of paper documents 30
`(1) This section applies if the registrar is required or permitted to 31
return-- 32
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Part 5 Amendment of Acts
[s 50]
(a) a document that has been lodged or deposited in paper 1
form; or 2
(b) a document in paper form that is a representation of an 3
electronic conveyancing document. 4
`(2) The registrar may return the document by leaving it at a place 5
designated for the purpose in the land registry.'. 6
50 Amendment of sch 2 (Dictionary) 7
(1) Schedule 2, definition approved form-- 8
omit. 9
(2) Schedule 2-- 10
insert-- 11
`approved form means-- 12
(a) for an electronic conveyancing document--a form 13
approved by the registrar under the Electronic 14
Conveyancing National Law (Queensland), section 7; or 15
(b) otherwise--a form approved by the chief executive 16
under section 194 for use under this Act. 17
copy, of a document, if the document is an electronic 18
conveyancing document, means-- 19
(a) a representation of the document in paper form; or 20
(b) a reproduction or representation of the document in 21
digital form. 22
electronic conveyancing document see section 14B. 23
Electronic Conveyancing National Law (Queensland) see 24
the Electronic Conveyancing National Law (Queensland) Act 25
2012, section 4. 26
endorse, in relation to endorsing information on a document, 27
if the document is an electronic conveyancing document, 28
means record the information in electronic form as part of the 29
document in such a way that it is reasonable to expect the 30
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Part 5 Amendment of Acts
[s 50]
information will be readily accessible as part of the document 1
so as to be useable for subsequent reference. 2
file, a document, if the document is an electronic 3
conveyancing document, means lodge the document 4
electronically under the Electronic Conveyancing National 5
Law (Queensland), section 7. 6
note, in relation to noting particular information on a 7
document, if the document is an electronic conveyancing 8
document, means record the information in electronic form as 9
part of the document in such a way that it is reasonable to 10
expect the information will be readily accessible as part of the 11
document so as to be useable for subsequent reference.'. 12
(3) Schedule 2, definition deposit-- 13
insert-- 14
`Note-- 15
For filing an electronic conveyancing document, see the definition file.'. 16
(4) Schedule 2, definition instrument-- 17
insert-- 18
`(h) an electronic conveyancing document.'. 19
(5) Schedule 2, definition lodge-- 20
insert-- 21
`Note-- 22
For filing an electronic conveyancing document, see the definition file.'. 23
© State of Queensland 2012
Page 32
Editor's note
Electronic Conveyancing National Law
Editor's note Electronic Conveyancing
National Law
Editor's note--
The text of the Electronic Conveyancing National Law set out in the
appendix to the Electronic Conveyancing (Adoption of National Law)
Act 2012 of New South Wales (as at the date of its enactment) is set out
below. The Electronic Conveyancing National Law (as in force from
time to time) is applied as a law of Queensland.
Contents
Part 1 Preliminary
1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4 Interpretation generally. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
5 Object of this Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
6 Law binds the State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Part 2 Electronic Conveyancing
Division 1 Electronic lodgment
7 Documents may be lodged electronically . . . . . . . . . . . . . . . . . . . 13
8 Registrar to process documents lodged electronically . . . . . . . . . 14
9 Status of electronic registry instruments . . . . . . . . . . . . . . . . . . . 14
Division 2 Client authorisations and digital signatures
Subdivision 1 Client authorisations
10 Client authorisations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
11 Effect of client authorisation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Subdivision 2 Digital signatures
12 Reliance on, and repudiation of, digital signatures. . . . . . . . . . . . 16
Part 3 Electronic Lodgment Networks
Division 1 Preliminary
13 Electronic Lodgment Network . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Page 5
Editor's note
Electronic Conveyancing National Law
Division 2 Operation of Electronic Lodgment Networks
14 Registrar may provide and operate ELN . . . . . . . . . . . . . . . . . . . 18
15 Registrar may approve ELNO to provide and operate ELN . . . . . 18
16 Conditions of approval as ELNO . . . . . . . . . . . . . . . . . . . . . . . . . 19
17 Effect of approval as ELNO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
18 ELNO required to comply with operating requirements . . . . . . . . 20
19 Renewal of approval as ELNO . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
20 Revocation or suspension of approval as ELNO . . . . . . . . . . . . . 20
21 Monitoring of activities in ELN . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Division 3 Operating requirements and participation rules
22 Operating requirements for ELNOs . . . . . . . . . . . . . . . . . . . . . . . 20
23 Participation rules. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
24 Registrar to have regard to nationally agreed model operating
requirements and participation rules . . . . . . . . . . . . . . . . . . . . . . 22
25 Publication of operating requirements and participation rules . . . 22
26 Subscribers required to comply with participation rules . . . . . . . . 23
27 Waiving compliance with operating requirements or participation rules
24
Division 4 Appeals
28 Appeal against decisions of Registrar . . . . . . . . . . . . . . . . . . . . . 24
29 Determination of appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
30 Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
31 Relationship with Act establishing responsible tribunal . . . . . . . . 26
Division 5 Compliance examinations
32 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
33 Compliance examinations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
34 Obligation to cooperate with examination. . . . . . . . . . . . . . . . . . . 27
35 Registrar may refer matter to appropriate authority . . . . . . . . . . . 29
36 Land titles legislation not limited. . . . . . . . . . . . . . . . . . . . . . . . . . 29
Part 4 Miscellaneous
Division 1 Delegation
37 Delegation by Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Division 2 Liability of Registrar
38 Registrar not obliged to monitor ELN or conduct compliance
examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
39 No compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
40 Registrar not responsible for additional services provided by ELNO 31
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Editor's note
Electronic Conveyancing National Law
Division 3 Relationship with other laws
41 Other laws relating to electronic transactions not affected . . . . . . 31
42 Powers may be exercised for purposes of this Law . . . . . . . . . . . 31
Schedule 1 Miscellaneous provisions relating to interpretation . . . . . . . 32
Part 1 Preliminary
1 Displacement of Schedule by contrary intention . . . . . . . . . . . . . 32
Part 2 General
2 Law to be construed not to exceed legislative power of Legislature 32
3 Every section to be a substantive enactment . . . . . . . . . . . . . . . . 33
4 Material that is, and is not, part of this Law . . . . . . . . . . . . . . . . . 33
5 References to particular Acts and to enactments. . . . . . . . . . . . . 33
6 References taken to be included in Act or Law citation etc . . . . . 34
7 Interpretation best achieving Law's purpose . . . . . . . . . . . . . . . . 34
8 Use of extrinsic material in interpretation . . . . . . . . . . . . . . . . . . . 34
9 Effect of change of drafting practice . . . . . . . . . . . . . . . . . . . . . . . 36
10 Use of examples. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
11 Compliance with forms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Part 3 Terms and references
12 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
13 Provisions relating to defined terms and gender and number . . . 42
14 Meaning of "may" and "must" et . . . . . . . . . . . . . . . . . . . . . . . . . . 42
15 Words and expressions used in statutory instrument. . . . . . . . . . 42
16 Effect of express references to bodies corporate and individuals 43
17 Production of records kept in computers etc . . . . . . . . . . . . . . . . 43
18 References to this jurisdiction to be implied . . . . . . . . . . . . . . . . . 44
19 References to officers and holders of offices . . . . . . . . . . . . . . . . 44
20 Reference to certain provisions of Law . . . . . . . . . . . . . . . . . . . . 44
21 Reference to provisions of this Law or an Act is inclusive . . . . . . 45
Part 4 Functions and powers
22 Performance of statutory functions. . . . . . . . . . . . . . . . . . . . . . . . 46
23 Power to make instrument or decision includes power to amend or
repeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
24 Matters for which statutory instruments may make provision. . . . 46
25 Presumption of validity and power to make . . . . . . . . . . . . . . . . . 48
26 Appointments may be made by name or office . . . . . . . . . . . . . . 48
27 Acting appointments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
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Editor's note
Electronic Conveyancing National Law
28 Powers of appointment imply certain incidental powers . . . . . . . . 50
29 Delegation of functions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
30 Exercise of powers before commencement . . . . . . . . . . . . . . . . . 53
Part 5 Distance, time and age
31 Matters relating to distance, time and age . . . . . . . . . . . . . . . . . . 55
Part 6 Effect of repeal, amendment or expiration
32 Time of Law ceasing to have effect . . . . . . . . . . . . . . . . . . . . . . . 56
33 Repealed Law provisions not revived . . . . . . . . . . . . . . . . . . . . . . 57
34 Saving of operation of repealed Law provisions . . . . . . . . . . . . . . 57
35 Continuance of repealed provisions . . . . . . . . . . . . . . . . . . . . . . . 57
36 Law and amending Acts to be read as one . . . . . . . . . . . . . . . . . 58
Part 7 Instruments under Law
37 Schedule applies to statutory instruments . . . . . . . . . . . . . . . . . . 58
Page 8
Editor's note
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.
client authorisation has the meaning given in section 10.
compliance examination has the meaning given in section 33.
Page 9
Editor's note
Electronic Conveyancing National Law
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 Australia, that came into operation on
21 November 2011 and as in force from time to time.
jurisdiction means State.
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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.
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.
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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.
(2) In order to achieve this object, this Law, among other things,
authorises the Registrar in each participating jurisdiction to
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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.
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.
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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.
(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.
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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.
(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.
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(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
(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
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(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:
(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.
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(5) For the purposes of subsection (4) (b) (ii), it does not matter
whether the authority was:
(a) general, or
(b) limited or restricted to documents of a particular class or
to a particular document or in any other way.
Part 3 Electronic Lodgment Networks
Division 1 Preliminary
13 Electronic Lodgment Network
(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.
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(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.
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.
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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.
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:
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(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.
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,
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(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.
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.
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(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.
(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
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(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:
(a) a decision by the Registrar to refuse to approve the
person as an ELNO,
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(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.
30 Costs
(1) The responsible tribunal may make any order about costs it
considers appropriate for the proceedings under this Division.
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(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.
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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.
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.
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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.
(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.
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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.
(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:
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(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
(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
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(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.
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
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(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
(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
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(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.
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.
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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.
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.
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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.
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.
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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.
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.
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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.
(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" et
(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 instrument
(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
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(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), an
(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:
(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.
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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
(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
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(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.
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.
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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
(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
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(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
(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
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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.
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.
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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.
(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
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(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
(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).
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(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.
(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.
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(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.
(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.
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(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
(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
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(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),
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
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(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.
(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:
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(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.
(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,
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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
(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.
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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.
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