Transfer of Land (Electronic Transactions) Act 2004

Victorian Legislation Parliamentary Documents i Transfer of Land (Electronic Transactions) Act 2004 Act No. 23/2004 TABLE OF PROVISIONS Section Page PART 1—PRELIMINARY 1 1. Purposes 1 2. Commencement 2 PART 2—AMENDMENTS TO THE TRANSFER OF LAND ACT 1958 3 3. Definitions 3 4. New section 27AB inserted 3 27AB. Verification of identity 3 5. Instruments in duplicate and triplicate 4 6. New Part IIIA inserted 4 PART IIIA—ELECTRONIC INSTRUMENTS 4 44A. Restriction on lodgement of electronic instruments 4 44B. Registrar may provide electronic lodgement network 5 44C. Agents for lodging electronic instruments must be eligible persons 6 44D. Powers of Registrar 7 44E. Duty of Registrar in relation to priority of electronic instruments 8 44F. Notification of registration 8 44G. Evidence of registration of electronic instrument 9 44H. Electronic lodgement network malfunction 9 44I. Destruction of certificate of title 10 44J. Registrar may require production of documents 10 44K. Registrar may specify matters to be certified 11 44L. Evidence of electronic instruments 11 44M. Electronic certification of electronic instrument 12 44N. Registrar may deal exclusively with responsible party 12 7. Regulations 13 8. Statute law revision 13 -- 1 of 17 -- Victorian Legislation Parliamentary Documents Section Page ii PART 3—AMENDMENTS TO OTHER ACTS 14 9. Amendment to the Instruments Act 1958 14 10. Amendment to the Property Law Act 1958 14 ═══════════════ ENDNOTES 15 -- 2 of 17 -- Victorian Legislation Parliamentary Documents 1 Transfer of Land (Electronic Transactions) Act 2004† [Assented to 18 May 2004] The Parliament of Victoria enacts as follows: PART 1—PRELIMINARY 1. Purposes The main purposes of this Act are— (a) to amend the Transfer of Land Act 1958— (i) to provide for the lodgement and registration of electronic instruments; and Victoria No. 23 of 2004 -- 3 of 17 -- Victorian Legislation Parliamentary Documents Part 1—Preliminary Transfer of Land (Electronic Transactions) Act 2004 Act No. 23/2004 2 (ii) to empower the Registrar to require verification of identity before registering an instrument under that Act; and (b) to amend section 126 of the Instruments Act 1958 to remove any doubt as to the application of the Electronic Transactions (Victoria) Act 2000 to that section. 2. Commencement This Act comes into operation on the day after the day on which it receives the Royal Assent. __________________ s. 2 -- 4 of 17 -- Victorian Legislation Parliamentary Documents Part 2—Amendments to the Transfer of Land Act 1958 Transfer of Land (Electronic Transactions) Act 2004 Act No. 23/2004 3 PART 2—AMENDMENTS TO THE TRANSFER OF LAND ACT 1958 3. Definitions In section 4(1) of the Transfer of Land Act 1958 insert the following definitions— ' "electronic instrument" means an instrument that is an electronic communication within the meaning of the Electronic Transactions (Victoria) Act 2000; "electronic lodgement network" means the electronic lodgement network referred to in section 44B;'. 4. New section 27AB inserted After section 27A of the Transfer of Land Act 1958 insert— "27AB. Verification of identity (1) The Registrar is not required to register an instrument under section 27A if the Registrar is not satisfied as to the identity of any person by or on behalf of whom the instrument was executed. (2) The Registrar may require or permit the identity of a person to be verified by a person or body approved as a verifier for the purposes of this section. (3) The Registrar may, by notice published in the Government Gazette, approve a person or body or class of persons or bodies as a verifier or verifiers for the purposes of this section.". s. 3 See: Act No. 6399. Reprint No. 14 as at 1 January 2003. LawToday: www.dms. dpc.vic. gov.au -- 5 of 17 -- Victorian Legislation Parliamentary Documents Part 2—Amendments to the Transfer of Land Act 1958 Transfer of Land (Electronic Transactions) Act 2004 Act No. 23/2004 4 5. Instruments in duplicate and triplicate (1) Sections 35(1) and 35(2) of the Transfer of Land Act 1958 are repealed. (2) After section 35(4) of the Transfer of Land Act 1958 insert— "(5) Sub-sections (3) and (4) only apply to instruments registered before the commencement of section 5 of the Transfer of Land (Electronic Transactions) Act 2004.". 6. New Part IIIA inserted After Part III of the Transfer of Land Act 1958 insert— 'PART IIIA—ELECTRONIC INSTRUMENTS 44A. Restriction on lodgement of electronic instruments (1) The Registrar is not required to accept an electronic instrument for registration under this Act unless— (a) the electronic instrument contains the information required by the Registrar and is in the form (if any) approved by the Registrar; and (b) the electronic instrument complies with the prescribed requirements (if any); and (c) the electronic instrument is lodged in the electronic lodgement network in the manner required by the Registrar; and (d) any relevant certificate required under section 44K is lodged in the electronic lodgement network; and s. 5 -- 6 of 17 -- Victorian Legislation Parliamentary Documents Part 2—Amendments to the Transfer of Land Act 1958 Transfer of Land (Electronic Transactions) Act 2004 Act No. 23/2004 5 (e) the certificate of title for the land to which the electronic instrument relates has been surrendered to the Registrar; and (f) the parties to the electronic instrument have specified the person who is to be the responsible party under this Part (the responsible party) for the registration of the electronic instrument. (2) The Registrar must publish notice in the Government Gazette of any information, form or manner of lodgement required by the Registrar under this section. 44B. Registrar may provide electronic lodgement network (1) The Registrar may provide or cause to be provided an electronic lodgement network for the purpose of lodging electronic instruments for registration under this Act. (2) The Registrar may from time to time determine requirements for the electronic lodgement network, which may include— (a) conditions of access to the electronic lodgement network; (b) requirements for the retention of documents supporting or authenticating electronic instruments, including periods for retention; (c) insurance requirements; (d) any other prescribed matter. (3) The Registrar must publish notice in the Government Gazette of any requirements determined under this section. s. 6 -- 7 of 17 -- Victorian Legislation Parliamentary Documents Part 2—Amendments to the Transfer of Land Act 1958 Transfer of Land (Electronic Transactions) Act 2004 Act No. 23/2004 6 44C. Agents for lodging electronic instruments must be eligible persons (1) A person (the agent) must not lodge an electronic instrument for registration under this Act on behalf of any person (the principal) unless— (a) the agent is an eligible person; and (b) the principal has authorised the agent by instrument in writing signed by the principal to execute the electronic instrument and lodge it for registration on the principal's behalf. (2) For the purposes of this section an "eligible person" is— (a) a current practitioner or interstate practitioner within the meaning of the Legal Practice Act 1996; or (b) a person who holds insurance of a kind and amount acceptable to the Registrar; or (c) a person who complies with any other eligibility requirements determined by the Registrar. (3) The Registrar may at any time require evidence of a person's eligibility or authority to act as agent under sub-section (1). (4) The Registrar may from time to time publish details of— (a) the kinds and amounts of insurance that are acceptable for the purposes of this section; (b) the criteria for a person to be an eligible person under sub-section (2)(c). s. 6 -- 8 of 17 -- Victorian Legislation Parliamentary Documents Part 2—Amendments to the Transfer of Land Act 1958 Transfer of Land (Electronic Transactions) Act 2004 Act No. 23/2004 7 44D. Powers of Registrar (1) If an electronic instrument is lodged for registration under this Act, the Registrar may— (a) refuse to register the instrument if, in the opinion of the Registrar, the electronic instrument— (i) is not in the approved form (if any); or (ii) is incomplete; or (iii) contains errors; or (iv) is not completed correctly; or (b) seek further information in respect of the electronic instrument; or (c) register the electronic instrument under section 27A without issuing a certificate of title; or (d) register the electronic instrument under section 27A and produce a certificate of title under section 27B. (2) Nothing in sub-section (1) affects any other power of the Registrar to refuse registration of an electronic instrument. (3) Nothing in section 27B requires the Registrar to produce a certificate of title in respect of the registration of an electronic instrument. (4) Nothing in this Part prevents the Registrar from producing a certificate of title under section 27B at any time after the registration of an electronic instrument. s. 6 -- 9 of 17 -- Victorian Legislation Parliamentary Documents Part 2—Amendments to the Transfer of Land Act 1958 Transfer of Land (Electronic Transactions) Act 2004 Act No. 23/2004 8 (5) If the Registrar refuses to register an electronic instrument and the parties to the electronic instrument wish to proceed with the relevant dealing, the Registrar may require the relevant instruments to be executed and lodged for registration in a form other than an electronic communication. (6) Sections 104(3A) to 104(3D) do not apply in relation to an electronic instrument registered under section 27A. 44E. Duty of Registrar in relation to priority of electronic instruments The Registrar must ensure that an electronic instrument lodged for registration is dealt with in a manner that ensures that section 34 is complied with. 44F. Notification of registration If the Registrar registers an electronic instrument under this Act, the Registrar must cause a notification of that registration to be given to— (a) the registered proprietor of the land or that person's agent (if any); or (b) the person nominated under section 44A(1)(f) as the responsible party in respect of the electronic instrument or a person nominated by that responsible party. s. 6 -- 10 of 17 -- Victorian Legislation Parliamentary Documents Part 2—Amendments to the Transfer of Land Act 1958 Transfer of Land (Electronic Transactions) Act 2004 Act No. 23/2004 9 44G. Evidence of registration of electronic instrument (1) The Registrar must, on the application of any person, produce a document in writing recording information that was registered and recorded on a folio as a result of an electronic instrument. (2) A document produced under sub-section (1) must be certified by the Registrar as a true representation of the information on the folio. (3) A document produced under this section is not a certificate of title. (4) A document produced under this section is— (a) evidence of the matters contained in the document; and (b) conclusive evidence that the person named in the document as the registered proprietor of the land described in the folio is the registered proprietor of that land. (5) An application under this section must be in the appropriate approved form and be accompanied by the prescribed fee (if any). 44H. Electronic lodgement network malfunction (1) The Registrar may amend the Register to correct errors in the Register and supply entries or recordings omitted to be made in the Register under this Act if the error or omission resulted from a malfunction of the electronic lodgement network. (2) The Registrar must keep a record of every correction under sub-section (1). s. 6 -- 11 of 17 -- Victorian Legislation Parliamentary Documents Part 2—Amendments to the Transfer of Land Act 1958 Transfer of Land (Electronic Transactions) Act 2004 Act No. 23/2004 10 (3) Every correction under sub-section (1) is to have the same validity and effect as if the error or omission had not occurred. 44I. Destruction of certificate of title (1) On the surrender of a certificate of title pursuant to section 44A(1)(e), the Registrar must either— (a) destroy the certificate of title; or (b) ensure that the certificate of title is marked, stamped or otherwise rendered unusable to support any further transaction in relation to land. (2) The Registrar may return a certificate of title that has been rendered unusable to support any further transaction in relation to land to the registered proprietor of the land to which that certificate of title relates. (3) If a certificate of title has been surrendered pursuant to section 44A(1)(e), the Registrar must record in the relevant folio of the Register— (a) the fact that the certificate of title has been surrendered; and (b) whether or not a new certificate of title has been issued for that folio under section 27B. 44J. Registrar may require production of documents (1) For the purposes of this Act, the Registrar may by notice in writing require any person who has lodged, or proposes to lodge, an electronic instrument in the electronic lodgement network to produce any document supporting or authenticating an electronic instrument that is required to be retained s. 6 -- 12 of 17 -- Victorian Legislation Parliamentary Documents Part 2—Amendments to the Transfer of Land Act 1958 Transfer of Land (Electronic Transactions) Act 2004 Act No. 23/2004 11 under any requirement determined by the Registrar under section 44B(2)(b). (2) The person must comply with a requirement under sub-section (1) within the period (being not less than 14 days) specified in the notice. (3) If a person fails to comply with a notice under sub-section (1), the Registrar may terminate that person's access to the electronic lodgement network. 44K. Registrar may specify matters to be certified The Registrar, by notice published in the Government Gazette, may specify— (a) any matters relating to an electronic instrument that must be certified under this Part; and (b) the method of electronic certification required for those matters; and (c) the class or classes of person who may certify those matters. 44L. Evidence of electronic instruments (1) The Registrar must, on the application of any person, produce a document in writing recording information contained in an electronic instrument that has been lodged for registration under this Act. (2) A document produced under sub-section (1) must be certified by the Registrar as a true representation of the information in the electronic instrument. (3) A document certified under sub-section (2) is evidence of the matters contained in the document. s. 6 -- 13 of 17 -- Victorian Legislation Parliamentary Documents Part 2—Amendments to the Transfer of Land Act 1958 Transfer of Land (Electronic Transactions) Act 2004 Act No. 23/2004 12 (4) An application under this section must be in the appropriate approved form and be accompanied by the prescribed fee (if any). 44M. Electronic certification of electronic instrument (1) The Registrar may produce in an electronic form a representation of any electronic instrument lodged in the electronic lodgement network. (2) The Registrar may certify the electronic representation in any manner determined by the Registrar. (3) A representation of an electronic instrument certified in accordance with this section is evidence of the contents and nature of the electronic instrument. 44N. Registrar may deal exclusively with responsible party If an electronic instrument is lodged in the electronic lodgement network for registration under this Act, the Registrar is only required to deal with the person nominated under section 44A(1)(f) as the responsible party for the purposes of— (a) requiring the person to submit any documents, provide any information or comply with any requisitions in relation to the electronic instrument and the relevant land; (b) returning any documents lodged with the Registrar in respect of the relevant land or the electronic instrument; (c) this Part in relation to the electronic instrument.'. s. 6 -- 14 of 17 -- Victorian Legislation Parliamentary Documents Part 2—Amendments to the Transfer of Land Act 1958 Transfer of Land (Electronic Transactions) Act 2004 Act No. 23/2004 13 7. Regulations After section 120(2)(fe) of the Transfer of Land Act 1958 insert— "(ff) requirements for electronic instruments for the purposes of Part IIIA; (fg) requirements for the electronic lodgement network;". 8. Statute law revision In section 40(2) of the Transfer of Land Act 1958, for "other the appropriate" substitute "other appropriate". __________________ s. 7 -- 15 of 17 -- Victorian Legislation Parliamentary Documents PArt 3—Amendments to other Acts Transfer of Land (Electronic Transactions) Act 2004 Act No. 23/2004 14 PART 3—AMENDMENTS TO OTHER ACTS 9. Amendment to the Instruments Act 1958 At the end of section 126 of the Instruments Act 1958 insert— "(2) It is declared that the requirements of sub- section (1) may be met in accordance with the Electronic Transactions (Victoria) Act 2000.". 10. Amendment to the Property Law Act 1958 (1) In section 75(2) of the Property Law Act 1958, for "This section" substitute "Sub-section (1)". (2) After section 75(2) of the Property Law Act 1958 insert— "(3) The entitlement under sub-section (1) to attestation of the execution of a conveyance does not apply to an electronic instrument within the meaning of the Transfer of Land Act 1958.". ═══════════════ See: Act No. 6279. Reprint No. 10 as at 1 January 2003 and amending Act No. 75/2003. LawToday: www.dms. dpc.vic. gov.au s. 9 See: Act No. 6344. Reprint No. 10 as at 12 August 1999 and amending Act Nos 74/2000, 11/2001, 27/2001 and 44/2001. LawToday: www.dms. dpc.vic. gov.au -- 16 of 17 -- Victorian Legislation Parliamentary Documents Transfer of Land (Electronic Transactions) Act 2004 Act No. 23/2004 15 ENDNOTES † Minister's second reading speech— Legislative Assembly: 1 April 2004 Legislative Council: 4 May 2004 The long title for the Bill for this Act was "to amend the Transfer of Land Act 1958 to provide for the lodgement and registration of electronic instruments and to amend the Instruments Act 1958 and the Property Law Act 1958 and for other purposes." Endnotes -- 17 of 17 --