Electronic Conveyancing in Australia: Challenges and Opportunities

This article discusses the challenges and opportunities of electronic conveyancing in Australia, including the implementation of e-conveyancing, security issues, and entering and verifying digital signatures.

Running head: LAND LAW
Land Law
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The term conveyancing is defined to be as the legal process that helps in preparing the
mortgage, sales deed and some other kinds of legal documents that is created and transferred.
It also deals with the land interest which means that there is a right of ownership over the
land like on lease or on ownership as per the HM Land Registry 20031. Somehow, this kind
of system is creating tension and anxiety towards those people who are kind of involved in
this legal process and interdependence of owners, companies, property developers and many
more.
A comprehensive system like electronic conveyancing or also known as e-
conveyancing has been started off to save time, money and reducing the delay of work
provided. The work is going to be paperless, fraud resistant it is capable of simplifying
electronic conveyancing of the documents, communication between the different parties
through networking, title’s online investigation, registration and completion of the work and
many other things2. These things can be addressed by electronic conveyancing. It will also
get transparency and will help to do the work faster. This system is provides its customers
with various facilities and good quality services, transaction intermediaries and many others.
New tools have been initiated to modernise the procedures like method of payments,
suppliers of the IT system and several others. It can be also described that by introducing the
process of e-conveyancing, the structure of land conveyancing not only can be reshaped but it
will also help to work in a better manner that will help in providing the customers with
efficient and a good quality service3. Somehow, implementing e-conveyancing seems to be a
challenging job as it involves renewing of the existing Land Registration Rules and Acts.
There are several changes that needs to be done like legislative changes so that the practices
1 Boocock, James, and Susan Duffy. "Practice management: Is your firm ready for the e-
conveyancing reforms?." LSJ: Law Society of NSW Journal 10 (2015): 48.
2 Griggs, Lynden, Rouhshi Low, and Rod Thomas. "The changing face of conveyancing responsibility." Property
Law Review 5 (2015): 109-112.
3 Herbert-Lowe, Simone. "Risk: Is your practice ready for e-conveyancing?." LSJ: Law Society of NSW Journal 45
(2018): 81.

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of electronic documents, digital signature and several others must be legalised. There are
many countries in which e-conveyancing already exists. One such country is Australia.
People in Australia are making the most of it. The real estate agents and the conveyancers are
choosing this process to provide their clients with better services and using the internet to the
market. This process keeps the client updated and it also provides online access to the clients.
Electronic conveyancing has become a common place for all the real estate agents to deal
with their clients easily by using the latest technology to sale the properties, which also
includes auctions, sales by tender and many others. Through this process, many agents can
operate and keep updates about the large data of the property with themselves.
In the year 2001, it has been see that the implementation and development of the
National Electronic Conveyancing within Australia is dependent on the national approach.
An agreement has been formed between the industry and the government which states that
this is the time to efficiently improve the process that is linked with the real estate business
by applying National Electronic Conveyancing4. This step can only move forward when the
required changes will be made like the responsibilities and role of the technology. In order to
use the system of electronic conveyancing, the space that is between the systems of the Land
Registries’ and the system of the conveyancing industry must be filled that will result in
creation of the documents with the help of the technology that will be required to print and
later on will be signed by the respective parties and then will be send to the Land Registry for
registering the titles5. Some cities of Australia do have sufficient fund to carry out this
process of e-conveyancing.
4 Lancaster, Michele. "National: E-conveyancing removing the mystique." Brief 42.1 (2015): 28.
5 Law firm bytherules Conveyancing, Noosaville. "First electronic conveyance by the rules." Circulation 10
(2015).

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The eight States and Territories in Australia have joined together with the professional
stakeholders in the year 2005 to develop the process of National Electronic Conveyancing. In
the year 2005, The National Electronic Conveyancing Office (NECO) was established so that
it can help in supporting the implementation and development of the National Electronic
Conveyancing. The National Electronic Conveyancing Office (NECO) included a National
Business Model that got developed with the consultation of the stakeholders within the years
2005-2008. It is explained as the context of the business for in the industry of the mortgage
financing and conveyancing in Australia6. In the year 2008 it has been said that National
Electronic Conveyancing provides an effective and efficient platform to settle down the
transactions of the real estate properties electronically. It also prepare the registry of the
instruments electronically with the land registry and also fulfils the obligations of the tax
electronically.
On the other hand the Australian Capital Territory did not sign the intergovernmental
agreement to form Electronic Conveyancing National Law (ECNL) but all the other
jurisdictions have signed this agreement. On 21st of November 2011 the intergovernmental
agreement came into force and the establishment of Australian Registrars Electronic
Conveyancing Council (ARNECC) was done7. The ARNECC comprises of the registrars of
the jurisdiction. From each jurisdiction, the registrar becomes the member of the ARNECC or
it may appoint a nominee on the jurisdiction of the registrar by signing the intergovernmental
agreement.
The establishment of Australian Registrar Electronic Conveyancing Council has been
done to implement and to manage the regulatory framework for the National Electronic
Conveyancing so that it can lodge the documents with the registrar for the relationship of the
6 McConnell, Duncan. "Rolling out electronic conveyancing in South Australia." Bulletin (Law Society of South
Australia) 37.3 (2015): 28.
7 Perkins, Gordon. "Property law: Prepare yourselves: What you need to know about the national mortgage
form." Proctor, The 37.10 (2017): 20.

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registrar with the Electronic Lodgement Network operator. The duty of the Electronic
Conveyancing National Law is to implement National Electronic Conveyancing by giving
them legal authority so that they can create and lodge the electronic instruments are the
documents hand to also give such electronic instruments that must be treated in the exact way
as the manual instruments. The National Electronic Conveyancing is the business and the
legal environment to prepare the registry of instruments electronically with the land registry
also settle down the transaction of the property electronically. An online business policy
known as the Electronic Lodgement Network has been formed to deliver the National
Electronic Conveyancing in Australia. It is a web hub for the party to prepare and settle down
the transactions electronically and for the registration it also helps to lodge down the
documents electronically at the proper land registry. It has been a channel to present the
documents for the process of lodgement with the land registries8. The work of Electronic
Lodgement Network is to provide a mechanism to settle down the financial aspects of the
conveyancing transaction.
There are some requirements of the security that only the registered subscribers that
are the lawyers, lenders and the conveyancers has the permission to use this system on the
behalf of their clients. The electronic conveyancing system will not be available for the
normal public to use until they must represent themselves by the subscriber. In the electronic
transaction a subscriber who is representing their client must enter into the agreement of the
client authorisation and it must authorise the subscriber to act on behalf of the client. In order
to enter the agreement of the client authorisation it is necessary for the subscriber that he or
she must do the verification of the client’s identity as per the rules of the verification of
Identity. Several lodgement and data verification will be checked before the settlement. The
8 Roesler, Daniel. "E-conveyancing: Digital revolution transforms property transactions."
Bulletin (Law Society of South Australia) 38.10 (2016): 34.

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subscriber will sign the electronic documents I fixing the digital signature in that document.
The settlement of finance will only be automatically done by the electronic fund transfer
when there is completion of the convincing transaction and it is prepared to settle on the
given settlement date. The instruments of the land registry will be lodged electronically with
the Land Registry when the settlement has been done.
A group of stakeholders has been taken for the consultation regarding the National
Electronic Conveyancing since the year 20049. In order to develop the legal framework of
the national electronic conveyancing the important stakeholders have involved from the year
2009 to release the Model Participation Rules on the date of 30 March 2012. On the date 6th
of July 2012 the Consultation Regulation Impact Statement attached along with the draft
ECNL was released.
The Regulation Impact Statement (RIS) was prepared as per the Council of Australian
Government (COAG) and its requirements is to evaluate the impact on the Australian
Government Community and the industry by introducing the National Electronic
Conveyancing. The structure of the regulation impact statement consists of 8 sections.
Section 1 states the nature of the problem and how big the problem is in Australia. Section 2
lays down the main objectives of the action of the government. Section 3 discusses the
regulatory options that are available. Section 4 provides with the details of the approach that
has been taken to the impact analysis and also provides with the details of the results that
includes benefits and costs and also gives out the major recommendations and findings.
Section 5 consists of consultation that has been undertaken. Section 6 outlines the options
that has been recommended and its conclusion. Section 7 explain about the implementation
and the review strategy and lastly Section 8 describe the definitions and the terms.
9 Rosier, Peter. "Property law: Electronic conveyancing: Where are we now?." LSJ: Law Society of NSW Journal
8 (2015): 78.

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There are certain difficulties that e-conveyancing have been facing like security issues
and entering and verifying digital signature.
Security issues: one of the major necessity is security that is required for every stage of
the process of registration and of the conveyancing that also includes the service electronic
fund transfer, logical, physical and procedural measures of the security and also the security
of the data or the e-documents. The component services who stores the data must protect the
data against the access, corruption and loss by the personnel that are not authorized. There is
some imbalance between the security, the usability and the cost in the services of the e-
conveyancing. There are some risks in the data of the e-conveyancing and the process of it
and it has been categorised in the following manner like integrity, authenticity, non-
repudiation, audit trails and privacy10. The service of the e-conveyancing must assure the
integrity of the messages and the data against some accidental alteration. It has not been
specified that there is some integrity to secure the data or not. Authenticity of the e-
conveyancing process has not been mentioned that means whether the buyer and the seller’s,
the lenders, staffs of the Land Registry, individual conveyancers have been authorised to use
this kind of services or not. There must not be non-repudiation of the exchange of the
information or of the data before any kind of alteration been done. There does not seem to be
any kind of audit trails in the e-conveyancing services. There is no kind of privacy that has
been maintained in the security of the data, documents, information and the messages that has
been exchanged between the parties and the users.
Entering and verifying digital signature: in today’s world digital signature is the most
important key factor in the e-conveyancing services. Somehow, this digital services has not
been used by most of the countries and it has been one of the major difficulty because there
are certain people who try out some fraudulent methods for their work. There must be a pair
10 Thomas, Rod, Lynden Griggs, and Rouhshi Low. "Electronic conveyancing in Australia: is anyone concerned
about security?" Australian Property Law Journal 23.1 (2014): 1-16.

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of keys like the private and the public key and the smart card to enter and verify the signature
of the staff and the client so that no fraud is being done. The smart card helps out in
identification of each person and his number and the password. Several steps must be taken
for the verification of the data of oneself. The private key must not be distributed publicly
otherwise it would make chaos. It must be kept secretly and it must be only used to sign the
documents. The pubic key must be distributed publicly and it must be used to verify the
signatures. Certain areas in Australia who have not implemented the technique of the digital
signature. This is also creating some security problems and it must be implemented as soon as
possible to avail security in the e-conveyancing services.

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Bibliography
Boocock, James, and Susan Duffy. "Practice management: Is your firm ready for the e-
conveyancing reforms?." LSJ: Law Society of NSW Journal 10 (2015): 48.
Griggs, Lynden, Rouhshi Low, and Rod Thomas. "The changing face of conveyancing
responsibility." Property Law Review 5 (2015): 109-112.
Herbert-Lowe, Simone. "Risk: Is your practice ready for e-conveyancing?." LSJ: Law
Society of NSW Journal 45 (2018): 81.
Lancaster, Michele. "National: E-conveyancing removing the mystique." Brief 42.1 (2015):
28.
Law firm bytherules Conveyancing, Noosaville. "First electronic conveyance by the rules."
Circulation 10 (2015).
McConnell, Duncan. "Rolling out electronic conveyancing in South Australia." Bulletin (Law
Society of South Australia) 37.3 (2015): 28.
Perkins, Gordon. "Property law: Prepare yourselves: What you need to know about the
national mortgage form." Proctor, The 37.10 (2017): 20.
Roesler, Daniel. "E-conveyancing: Digital revolution transforms property transactions."
Bulletin (Law Society of South Australia) 38.10 (2016): 34.
Rosier, Peter. "Property law: Electronic conveyancing: Where are we now?." LSJ: Law
Society of NSW Journal 8 (2015): 78.
Thomas, Rod, Lynden Griggs, and Rouhshi Low. "Electronic conveyancing in Australia: is
anyone concerned about security?" Australian Property Law Journal 23.1 (2014): 1-16.