Section 11A(2) and Section 11B(2) of the Land Title Act 1994 (Qld) requires mortgagees to take reasonable steps to identify mortgagors or face cancellation of their mortgage. In addition, section 162(a) of the Land Title Act says that a witness must ‘take reasonable steps to ensure that the individual is the person entitled to sign the instrument’.

Sections 11A(3) and 11B(3) deems compliance with the Land Title Practice Manual (Queensland) for verification of identification of mortgagors as being reasonable steps. 

The publication of the Manual of Land Title Practice is authorised by 9A(2)(c) of the Land Title Act

Part 2-2005 of the Land Title Practice Manual (Queensland) reads:

Under the Land Title Act 1994 and the Land Act 1994, a mortgagee takes ‘reasonable steps’ if they comply with the practices included in this Manual. One way in which a mortgagee will take ‘reasonable steps’ is if they identify the person who is the mortgagor using the Verification of Identity Standard in Part 60-2000 (also set out below) and ensure they are identical with the person who is, or who is about to become, the registered owner or the holder of the interest being mortgaged. In most cases, this will satisfy ‘reasonable steps’ requirement however mere mechanical compliance is not sufficient. Further steps are required where a mortgagee ought reasonably know that any identity document is not genuine, any photo on an identity document is not a reasonable likeness or the person being identified does not appear to be the person to which the identity document relates or it would otherwise be reasonable to take further steps. Examples given are differences in name, gender, and age between the person being identified and the registered owner, as well as whether the mortgage is executed under power of attorney, in which case the mortgagee should take reasonable steps to ensure the power of attorney is genuine. Originals or copies of identity documents or a written record of steps taken must be kept by a mortgagee for 7 years after the mortgage is registered.

The Verification of Identity Standard prescribes:

  1. A face-to-face in-person interview.
  2. The mortgagor must bear a “reasonable likeness” to the person depicted in photographs in the identification documents.
  3. The identification documents must be originals and be produced by the mortgagor.

The standard then prescribes the identity documents required in a cascading fashion. The Gold Standard for Australian citizens or residents being the possession of an Australian or foreign passport and Australian drivers licence. Thus obviating the need for anything else to be produced. Thereafter as less probative documents are produced more of them are required. In the absence of either a passport or an Australian drivers licence (but not both), a birth certificate plus Medicare/Centrelink/Veterans’ card can be produced or if not available and in conjunction with a passport only, another government issued identity document with a photograph provided that if the government issued identity document does not contain a photograph, a birth certificate still must be produced. Those presenting with a dearth of documentation are required to be accompanied to the face-to-face interview by an “Identity Declarant” who themselves must be indentified in accordance with the standard and in certain circumstances must be a member of specified professions. Foreign nationals must be identified using their foreign passport and some form of government issued identity document with a photograph and if the government issued identity document does not contain a photograph, a birth certificate must also be produced.

The standard requires that the person identifying the mortgagor provide a certification in a prescribed form. It is also necessary for the lender to obtain a completed client authorisation form from the mortgagor. Any lenders requiring assitance in preparing their template documents for E-Conveyancing should contact Matthew Bransgrove

E-Conveyancing

The Participation Rules (version 3) were adopted on 9 November 2015 by the Registrar pursuant to section 23 of the Electronic Conveyancing National Law which is a schedule to Electronic Conveyancing (Adoption Of National Law) Act 2012 (NSW) which forms part of the law of Queensland by virtue of section 3 of the Electronic Conveyancing National Law (Queensland) Act 2013.

The rules adopted in QueenslandNSWVictoriaSouth Australia and Western Australia as part of the implementation of a national e-conveyancing system are near identical being based on the ARNECC model participation rules