Changes to enforcement powers in the Electronic Conveyancing National Law
The submission to the Australian Registrars’ National Electronic Conveyancing Council (ARNECC) in relation to the Position Paper on Changes to Enforcement Powers in the Electronic Conveyancing National Law was prepared by the Law Council of Australia.
In the Law Council’s view, the existing enforcement measures under the Electronic Conveyancing National Law (ECNL) of suspension or termination are too limited, particularly in mandated eConveyancing jurisdictions. The Law Council considers the enforcement options and proposals outlined in the Position Paper to be broadly appropriate in ensuring compliance with the ECNL, subject to the further detail to be provided in the draft legislation.
The Law Council provides three threshold comments:
(a) It will be important that ARNECC and the Registrars in each jurisdiction receive increased resources to enable them to utilise their new enforcement powers and enhance confidence in the regulation of electronic conveyancing generally. Unless sufficiently resourced, the reforms may undermine, rather than assist, the objective of improving compliance with the ECNL.
(b) Any enforcement powers should be retained and exercised only by the relevant Registrar in each jurisdiction. In those jurisdictions which have privatised or granted concessions or licences for the operation of their registries, enforcement powers of the kind contemplated in the Position Paper should not be delegable to the operator or concessionaire. The enforcement powers should only be exercised by the ‘statutory’ Registrar.
(c) Any enforcement action must not jeopardise any transaction the subject of an agreed settlement time (except in an emergency). In other words, the certainty that a scheduled settlement will proceed as agreed between the parties to the transaction must not be undermined by any actual or threatened enforcement action against any of the Electronic Lodgment Network Operators (ELNOs) involved.
You can read the full submission below.