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National Electronic Conveyancing Law Update

On 19 March 2020, Australian Registrars National Electronic Conveyancing Council (ARNECC) released a statement concerning the face-to-face identity verification regime and signing of Client Authorisations as a result of the evolving COVID-19 outbreak situation. The statement emphasised particularly relevant sections of two of its published guidance notes.

Guidance Note #1 – Client Authorisation was published to provide guidance around the Client Authorisation. Sections 5 and 6 of the Guidance Note is particularly relevant. There is no requirement in the Electronic Conveyancing National Law or Participation Rules that the Client Authorisation form needs to be wet-signed. However, reasonable steps need to be taken by the Subscriber (lawyer or conveyancer of their agent) to ensure that the Client Authorisation is in fact signed by the client or their agent. This may be done by reference to the signature(s) on the verification of identity supporting documentation.

Guidance Note #2 – Verification of Identity was published to provide guidance around the verification of identity process. The purpose of carrying out verification of identity is to reduce the risk of identity fraud and the registration of fraudulent land transactions. While the Verification of Identity Standard required a face-to-face in person interview, compliance with that Standard is not mandatory. A Subscriber must verify the identity of their client in a way that constitutes reasonable steps. It is up to the Subscriber to determine what constitutes reasonable steps specific to the circumstances. What amounts to reasonable steps may be influenced by the length of time the Subscriber has known the client and whether they (or their firm) has represented that person in previous transactions. Ultimately, this would be determined by a Court on an objective basis – that is, what steps would an ordinarily prudent Subscriber have taken in the circumstances in the ordinary course of his or her business.

 In the current COVID-19 environment, Subscribers may consider using video technology as part of the verification of identify process. 

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