Queensland's Parliament is looking to implement the national
system of electronic conveyancing by the end of 2013.
A report by a parliamentary committee on the provisions of the
Electronic Conveyancing National Law (Queensland) Bill 2012 is
expected to pass the second reading speech shortly.
The Bill implements the Electronic Conveyancing National Law
adopting the appendix to the Electronic Conveyancing (Adoption
of National Law) Act 2012 passed in New South Wales as law in
amending the Land Title Act and Land Act to permit electronic
land title forms.
The first tranche will comprise stand alone refinances and
discharges and will only affect financial institutions. The second
tranche is scheduled for the end of 2014 and will include all other
dealings that can be lodged or conducted on Property Exchange
Australia (PEXA) including transfers and caveats.
PEXA will not replace the land title registry of each State and
Territory. Rather, PEXA is an electronic workspace in which parties
will interact with the land titles registry (lodgement of dealings)
and interact with each other (financial settlement). As such,
implementing PEXA will not cause data integrity issues in the land
titles registry as was the case with the Personal Property
Similarly, the Bill does not amend the substantive land title
law. All other aspects of land transactions and conveyancing remain
unaffected (such as exchange of contracts and preparation of loan
documentation). The use of PEXA is voluntary and the Bill does not
repeal the use of paper forms. It is anticipated that dealings such
as transmission applications will continue to be lodged in paper
A client looking to conduct transactions on PEXA must approach a
"subscriber" who has access to PEXA. The client will need
to authorise the subscriber to sign electronic documents and
complete the financial settlement. In turn, the subscriber must
take reasonable steps to identify the client. The proposed rules of
PEXA are quite prescriptive when identifying a client, including
the requirement that identification must be conducted by a
"face-to-face in-person interview".
A subscriber will create a workspace and fill out electronic
land title forms. These forms can then be "signed" by a
subscriber on behalf of a client through the use of Public Key
Infrastructure. A subscriber has a pair of linked mathematical
keys, one made public and one kept private. A document is
"signed" or encrypted by the private key and can then
only be verified or unencrypted by use of the public key. Once all
parties have fulfilled all requirements, PEXA will lock the
workspace, submit documents to the land title registry for
processing, complete the financial transfers and await confirmation
A document that is signed by the subscriber is binding on the
subscriber personally in addition to the client (referred to as
"attribution"). An attributed signature cannot be
repudiated unless it was not created by the subscriber and was not
caused by the failure of the subscriber or its employees or agents
to take reasonable care or follow the subscriber rules.
The policy behind such a strong rule of attribution is that it
is necessary to protect the integrity of the system and allow
parties to rely upon signed documents. The Queensland Law Society
has raised concerns regarding the liability of the subscriber for
fraudulent conduct of employees, mistakes by employees and third
parties "hacking" the subscriber's private key.
Unless the attribution rule is amended in the national law, it will
be left with the subscriber to mitigate these areas of risk by
implementing robust procedures, training and security.
Although areas of concern remain, e-conveyancing has finally
gained momentum and is set to become a reality for Queensland this
Thynne & Macartney will stay abreast of any developments and
will provide further updates as they occur.
Thynne & Macartney's updates are provided for
your information and interest only. We aim to highlight aspects of
the law, recent court decisions or regulatory changes which we
think might be of interest or relevance to our clients. Our updates
are not intended to be comprehensive and do not constitute legal
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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