Verification of identity
The Western Australian Registrar and Commissioner of Titles Joint Practice: Verification of Identity Practice (VOI practice) commenced on 1 July 2012 with a six-month transitional implementation period. Full compliance began on documents lodged on and after 2 January 2013.
The VOI practice is designed to reduce the opportunity for successful land title fraud as a result of identity theft or other improper dealings. It sets out to achieve this by requesting verification of the identity of a person transacting and their authority to deal with an interest in land.
Verification of Identity and Authority Requirements – Paper (Draft for comment)
Please continue to provide feedback about the VOI practice to email@example.com.
About the VOI practice
WA's Registrar of Titles and Commissioner of Titles are currently reviewing the WA VOI Practice to better align it with the e-conveyancing Participation rules. Conveyancers are encouraged to implement the verification of identity requirements in the Participation rules into their policies and procedures.
The Verification of Identity Standard required has two base requirements:
- Identity document production – production of current, original identity documents from the categories in the VOI practice.
- Visual verification of identity – a visual 'face-to-face' comparing the photograph on the current original identity documents with the person being identified.
In accordance with the VOI practice, a statement by a conveyancer, lawyer or mortgagee is required.
The statement can be made:
- in the form of a statutory declaration
- on letterhead and lodged with the relevant document
- on a transfer of land form and a mortgage form that incorporates the VOI statement.
The full version of the VOI practice is located in Chapter 14 of the Land titles registration practice manual.
Current, original identity documents
The production of current, original identity documents is a fundamental component of the VOI practice. Section 14.3 'Verification of Identity Standard' in the Lands title registrations practice manual clearly outlines the documentation requirements; and specifically, Section 14.3.2 further outlines the documentation in Table 2 – Verification conducted inside Australia and Table 3 – Verification conducted outside Australia.
The standard in the VOI practice is based upon proposals being considered for nationwide introduction as part of National Electronic Conveyancing.
Information for self-represented parties about the VOI practice, including the form for Australia Post.
Identity security - Government information on identity crime strategies
MoneySmart - Australian Securities and Investments Commission
WAScamNet - Department of Consumer Protection
SCAMwatch - Australian Competition & Consumer Commission
AICWA - Australian Institute of Conveyancers W.A Division
WAPOL - Western Australia Police Major Fraud Squad
As part of Landgate's commitment to supporting the implementation of the VOI practice, we have provided responses to frequently asked questions. For all further enquiries, please contact us.
These questions and answers are intended to act as a general guide and not as legal advice. They are provided in good faith and believed to be accurate at the time of publication and are provided on the basis that you will be responsible for making your own assessment of the contents and that they are appropriate for your particular circumstances. If you have any issues of a legal nature, you should consider seeking the advice of an independent legal practitioner who is experienced in property matters.
The Verification of Identity Practice
Is this Practice increasing the liabilities of licensed settlement agents, lawyers and financial institutions?
The Verification of Identity Practice is not intended to increase the liability of licensed settlement agents, lawyers and financial institutions. It is designed to assist those in the property industry to discharge their existing responsibility to those holding and acquiring interests in land.
Is that Verification of Identity Practice law? What is the legal basis?
This is a recommended practice by the Western Australian Commissioner of Titles and Registrar of Titles. The Verification of Identity Practice does not restrict the discretion of either the Registrar or Commissioner. Just because VOI has been carried out, it does not mean the documents will automatically be registered. Similarly, if the VOI has not been done, it does not mean that the documents will not be registered. Documents are registered provided they comply with the Registrar of Titles' usual examination process and requirements of the Commissioner, as appropriate. Each matter needs to be considered on a case-by-case basis as to the particular circumstances.
Why introduce a new standard of verification of identity? Why can't we use the current standard-namely the 100 point check*?
The Registrar and Commissioner believe this new VOI standard is more robust than existing standards because:
- The identity document production involves photographic identity documents and a face-to-face meeting.
- It reduces reliance on identity documents without photographs, and reduces reliance upon documents that are easily obtained or issued, such as utility bills. The new standard is based on proposals currently being considered for introduction nationwide as part of National Electronic Conveyancing (NEC).
*Note: Refer to the 100 point check and/or the AML/CTF (Anti Money Laundering and Counter Terrorism Financing Act 2006 (Cth)).
What does 'reasonable steps' mean?
This is a phrase that describes the actions or efforts that a reasonable person would take in a particular situation. For VOI, the Registrar of Titles and Commissioner of Titles consider that the standard in this Verification of Identity Practice is 'reasonable steps'.
What does 'mere mechanical compliance' mean?
'Mere mechanical compliance' is a phrase that describes the situation where the process is followed without paying attention to the circumstances around the transaction. Each transaction needs to be assessed on the merits of the potential risk of fraud with appropriate steps taken in the circumstances to verify the identity of the person transacting as well as their authority to deal with the interest in land. All interactions the lawyer, licensed settlement agent or mortgagee has with the person transacting must be taken into consideration when making the required Statement in accordance with paragraph 184.108.40.206.1 in the Land titles registration practice manual. Any anomalies should be considered and followed up in order to meet the 'mere mechanical compliance is not sufficient' requirement under the Verification of Identity Practice.
Do the Indian Ocean Territories (Cocos and Christmas Islands) need to comply with the Registrar and Commissioner of Titles Joint Practice: Verification of Identity?
Yes. Indian Ocean Territories (Cocos and Christmas Islands) are required to comply with the Verification of Identity Practice and from 4 February 2013, Australia Post Office outlets on these islands are able to carry out verification of identity.
The Land titles registration practice manual Section 1.1.3 states that "by a series of Commonwealth Acts enacted in 1992 the Shire of Cocos Keeling and the Shire of Christmas Island were created and the property (and other) laws of Western Australia as amended by Commonwealth legislation now apply to both areas. The Islands are still Commonwealth Territories but the laws of Western Australia, as modified and adopted by Commonwealth legislation, are applied. Section 8A(1) of the Territories Law Reform Act 104 of 1992 (Commonwealth) provides the legislative base for the application of Western Australian laws to the Territories."
What does the 'transitional start' mean?
A six month window was established between 1 July 2012 and 2 January 2013 where the conveyancing industry will be able to incrementally commence compliance with the Verification of Identity Practice, as and when they have established the means to meet the requirements. The transitional period was introduced as a response to feedback received through consultation, which indicated that many respondents wanted time to make the necessary changes to their business practices to accommodate the new practice. Documents lodged on and after 2 January 2013 must comply with the Verification of Identity Practice.
Can I incorporate a Verification of Identity (VOI) Statement into a Landgate TLA Form?
Yes. A VOI Statement can now be incorporated into a Transfer of Land form and a mortgage form. For more information on the how to use and obtain a new form please refer to Customer Information Bulletin No. 233 or access the new forms directly.
Note: Customers requiring individual form approval for these templates are to forward all form approval requests to the Form Approval Officer by email firstname.lastname@example.org
Can I strike through the Verification of Identity (VOI) Panel in the new Transfer of Land forms T1A and T2A and lodge with a VOI Statement on a separate sheet?
No. It is not acceptable to strike through the VOI Statement that has been integrated within the new T1A and T2A forms. You must use the existing T1 or T2 forms if you are providing a VOI Statement on a separate sheet.
Note: Since it appears to be usual practice for the Transferee/Buyers' agent to choose which form to use, it is clear that now it will be important for you to decide with the agent acting on behalf of the Transferor/Seller, as early in the transaction as practicable, which way you will go so that the correct form is used.
Can the Practice be used for documents executed and witnessed outside of Australia?
Will Landgate accept the Statement under paragraph 220.127.116.11.1 of the Land Titles Registration Practice Manual in photocopy, facsimile or email format?
No. The Registrar and Commissioner of Titles require this Statement to be signed in original form in order to avoid requisition. Landgate requires an original Statement and the examination teams are checking that a 'wet' signature has been executed. It should therefore be noted that photocopy, digital and stamped signatures will not be accepted and Statements containing such signatures will be stopped and requisitioned.
The requirement for an original signed Statement is expressly referred to in Customer Information Bulletin No. 226 dated 20 December 2012.
If the VOI has been done prior to the conveyancer receiving documents, who is liable?
The licensed settlement agent, lawyer or mortgagee is responsible for taking all reasonable steps to verify that each person for whom they act (their client) is who they claim to be and that they have the authority to deal with the relevant interest in land.
Can the documents be verified and signed at the same time and by the same person to reduce risk of fraud?
Yes they can. The Registrar of Titles and Commissioner of Titles consider that VOI immediately prior to the execution of documents provides for the lowest risk of potential fraud.
Is the Identifier's Certificate now a prescribed form?
No. The Verification of Identity Practice contains only a suggested certificate.
Can we complete the identification where we have a photo, but cannot read anything else in the document? eg foreign passport.
It is the responsibility of the lawyer, licensed settlement agent or mortgagee to be satisfied, by taking reasonable steps in the circumstances, that the person is who they claim to be and has the authority to transact with the interest in land. It may be appropriate to obtain an English translation where identification documents are in a foreign language.
What happens if I am a new buyer, transferee, or mortgagor, that lives overseas and do not have the rates notice in my name?
It is the responsibility of the mortgagee to be satisfied, by taking reasonable steps in the circumstances, that the person is who they claim to be and has the authority to transact with the interest in land. If a rates notice is not able to be produced the mortgagee is to take all necessary steps to satisfy themselves as to the persons' identity and their authority to transact with the interest.
Are marriage certificates provided by celebrants suitable as supporting evidence of a change of name under the VOI Practice?
The only current restriction with respect to the Verification of Identity Practice is that set by Australia Post which insists on a document issued by the Registry of Births, Death and Marriages when providing its WA Land Title Identity Verification service. This is Australia's Posts' prerogative and is independent of the Verification of Identity Practice.
For the purposes of the Verification of Identity Practice, conveyancers/lawyers/mortgagees may accept whatever evidence they consider reasonable in the circumstances, with regard to best practice and fraud mitigation. It's about what a prudent conveyancer/lawyer/mortgagee would do to effect their responsibility for identification under the Verification of Identity Practice.
Note that Landgate requires a Certificate of Marriage issued by the Registrar of Birth, Deaths and Marriages or the equivalent from another jurisdiction of origin for changes of name on the titles register.
Statement by conveyancer, lawyer or mortgagee
Can the Verification of Identity be carried out after the execution/signing of the document?
The recommended and preferred position of the Commissioner and Registrar of Titles is that the Verification of Identity is undertaken before the execution of the document, as they consider the Verification of Identity immediately prior to execution of documents provides for the lowest risk of potential fraud. They take the view that, at law, the conveyancer, lawyer or mortgagee is responsible for performing verification of identity in accordance with the Verification of Identity Practice.
However, the Commissioner and Registrar of Titles recognise that in certain circumstances it may be reasonable for the conveyancer, lawyer or mortgagee to allow the documents to be executed/signed before the Verification of Identity is carried out.
Can an employee acting on behalf of a Licensed Settlement Agent make the Statement as required by the Verification of Identity Practice at paragraph 18.104.22.168.1 of the Land Titles Registration Practice Manual?
The recommended and preferred position of the Commissioner and Registrar of Titles, is that the Statement is made and executed by the Licensed Settlement Agent who is responsible for the transaction. The Commissioner and Registrar take the view that, at law, the Licensed Settlement Agent is responsible for performing verification of identity in accordance with the Verification of Identity Practice.
However, the Commissioner and Registrar of Titles recognise, that in certain circumstances, it may be reasonable for the Licensed Settlement Agent to authorise and appoint an employee to execute the Statement on their behalf.
Can a document be signed and dated before the Statement is made by the conveyancer, lawyer or mortgagee under the Western Australian Registrar and Commissioner of Titles Joint Practice: Verification of Identity (VOI Practice) at paragraph 22.214.171.124.1 to the Registrar or Commissioner of Titles?
Yes. The document may be signed and dated before the Statement. The Verification of Identity, execution/signing and witnessing if required of documents and the Statement by the conveyancer, lawyer or mortgagee are three separate actions under the Western Australian Registrar and Commissioner of Titles Joint Practice for Verification of Identity.
It is suggested that Verification of Identity should be done first, followed by execution and witnessing, if required, of the documents (it is preferable that they are both done at the same time, but not essential) and then the Statement by the conveyancer, lawyer or mortgagee is made to the Registrar or Commissioner of Titles. It is anticipated that the conveyancer, lawyer or mortgagee would make the Statement after his/her client has been identified and after the documents are signed, and witnessed.
There is nothing in the VOI Practice that requires the Statement to be dated before the date shown on any document types to which the VOI Practice applies.
In support of the Verification of Identity Practice (paragraph 126.96.36.199.1 in the Land Titles Registration Practice Manual), can a single Statement by a conveyancer, lawyer or mortgagee be used to cover multiple documents?
No. Each document specified in 'Table 1: Documents to which this Practice Applies' (refer to paragraph 14.1.4 of the Land titles registration practice manual) needs its own Statement by conveyancer, lawyer or mortgagee as per paragraph 188.8.131.52.1.
Under the Verification of Identity Practice, the conveyancer can appoint anyone they wish to perform the identity component of VOI on their behalf. As the requirements under the Verification of Identity Practice are also about confirming the person's authority to transact with the interest in land and being vigilant throughout all dealings with the person transacting, the licensed settlement agent, lawyer or mortgagee must make the Statement.
Does the Statement by the conveyancer, lawyer or mortgagee in support of the VOI require passport or driver's licence numbers to be shown?
No. The current and original identity documents used to confirm the person's identity under the Verification of Identity Practice are not required to be detailed in the Statement by conveyancer, lawyer or mortgagee.
Can we accept a Statement by conveyancer, lawyer or mortgagee in support of the VOI that uses the words 'I verily believe'?
Yes. The expression 'I verily believe' is a stronger statement than 'I reasonably believe'.
Can a Statement by conveyancer, lawyer or mortgagee be accepted or checked by Landgate prior to lodging it with the document?
Landgate has worked with industry in general and some organisations to develop appropriate systems, processes, and procedures. Industry members are welcome to ask Landgate advice officers about the Verification of Identity Practice.
Landgate will not 'approve' or 'check' Statements by conveyancers, lawyers or mortgagees prior to lodgement as a routine service.
Why do conveyancers need to provide a Statement if they are unable to verify the identity prior to receiving documents?
A lawyer or licensed settlement agent is responsible for verifying the identity of their client – the person for whom they prepare documents affecting land title which will be lodged at Landgate. If the lawyer, licensed settlement agent or mortgagee are unable to verify the identity of their client or the mortgagor then a Statement under paragraph 184.108.40.206.1 of the Verification of Identity Practice (refer to the Land titles registration practice manual) cannot be made.
In making the Statement, the lawyer, licensed settlement agent or mortgagee is declaring that they reasonably believe that the person being identified is who they claim to be and that they have the authority to transact with the particular interest in land.
In this circumstance, the Registrar of Titles and Commissioner of Titles recommend that further enquiries are made to confirm the identity of the person transacting prior to proceeding to settlement or lodgement of the document at Landgate.
If the identity of the person transacting cannot be verified after making further enquiries, the Registrar of Titles and Commissioner of Titles recommend that the lawyer or licensed settlement agent have the strength of character not to proceed with the transaction or that the mortgagee not proceed to give the mortgage.
When the Statement by conveyancer, lawyer or mortgagee is incorporated into the mortgage or transfer document, how will Landgate know that there hasn't been a fraud, if another signature is on the form?
The accuracy of the true identities of those dealing in land (land owners and others) is fundamental and at the heart of a strong, accurate and reliable Torrens system of land title. Fraud will not be completely eliminated by the implementation of the Verification of Identity Practice. The Verification of Identity Practice has been introduced to minimise the potential risk of land title and mortgage fraud as well as other improper dealings.
Do financial institutions need to lodge the Statement by conveyancer, lawyer or mortgagee if they are lodging a mortgage solely (ie no other TLA document involved)?
Yes. Each mortgage document will need to be accompanied by a duly signed and completed Statement by conveyancer, lawyer or mortgagee.
Roles and responsibilities
What happens when a customer or mortgagor incorrectly signs and completes the Verification of Identity Statement in a mortgage which should have been completed by a bank officer?
Landgate strongly encourages that when the mortgagor is signing the mortgage they are given clear instructions that they do not sign the VOI Statement on page 2 as this may prevent the mortgage from being registered.
Landgate may accept a signing error and subsequent amendment made by the mortgagee in the VOI Statement in cases where it is clear that the authorised bank officer's signature has replaced the customer or mortgagor signature. However, each case will ultimately be assessed on its specific circumstances. Mortgagees are to assess for themselves whether it is reasonable to accept an amendment in each case that arises – Landgate staff will not provide such an opinion prior to the relevant document being lodged.
If there is any doubt that the signing clauses in the VOI Statement are not clear, mortgagees are to arrange for a new document to be executed or there is a risk that the lodgement may be requisitioned by Landgate.
The Registrar and Commissioner of Titles consider that VOI immediately prior to execution of documents provides for the lowest risk of potential fraud. Using this principle, it may be preferable that the VOI Statement be completed by the mortgagee before the mortgage is given to the mortgagor for signing.
Why has Landgate decided not to be an 'identifier'?
Knowing the client, and being able to verify the identity of that client, is the responsibility of those professionals in the conveyancing industry.
Verification of identity is the responsibility of the lawyer or the licensed settlement agent who is acting for their client, or the financial institution who is granting the mortgage and lending the funds.
When considering a self-represented party, it is their responsibility to ensure that they are identified in accordance with the Verification of Identity Practice.
Written evidence that VOI was undertaken needs to be lodged with documents for registration or noting at Landgate by the Registrar of Titles.
How do conveyancers deal with related party transfers when dealing with court orders?
Each case should be considered on its merits. The licensed settlement agent or lawyer needs to satisfy themselves as to the identity of each relevant party, and that they have the authority to deal with the interest in land.
Passports and visas
Can a person who is outside of Australia use the Landgate self-represented parties process?
No. At present the Verification of Identity Practice does not provide for self-represented parties who want to be identified overseas because Australia Post is currently the only member of the Landgate Panel of Identifiers. The Panel of Identifiers will be reviewed throughout 2013, and any changes will be communicated through the usual channels and published on the Landgate website.
How does a foreign corporation execute a document overseas?
A corporation registered outside of Australia can appoint and use its own in-house counsel (lawyer) to provide the Verification of Identity Statement to the Registrar or Commissioner of Titles, concerning the identity of the corporation's officer executing on behalf of that corporation. The corporation's officer or officers executing on behalf of that corporation must complete the Verification of Identity process, undertaken by an Australian consular officer before the corporation's in-house counsel lawyer completes the Statement to the Registrar or Commissioner of Titles.
Can an official or diplomatic passport be used as an 'Australian passport' as referred to in the Verification of Identity Practice?
Yes. An official or diplomatic passport are passports issued from the Australian Passport Office (APO) to people conducting official government business, and are restricted to people in specific categories and roles.
As long as the passport is current and original, and is suitable for photographic identification, then – subject to the identifier, conveyancer, lawyer or mortgagee being satisfied that it is genuine – either of these passports issued by the APO are suitable for use as an 'Australian passport'.
There are many British, South African and New Zealand citizens who do not have Australian passports and who have been here for many years and will have an Australian drivers' licence. Is there any opportunity to consider extending Category 1 to include other forms of identification other than Australian passports as this will remove the requirement to check the visa? Alternatively, a second option would be to do away with the visa requirement in category 5.
The categories of identity documents required by the Verification of Identity Practice will not be changed. However, it is the responsibility of the lawyer, licensed settlement agent or mortgagee to be satisfied, by taking reasonable steps in the circumstances, that the person is who they claim to be and has the authority to transact with the interest in land.
Whilst every person entering Australia must have a visa, many of these are now electronically linked to the passport, so nothing may show in the passport. A visa label can be placed in the passport but it is not required. There is a system to be able to view the information online, but this requires our members to be registered and then for the seller to provide the password to the Licensed Settlement Agent for them to activate the search. The Department of Immigration has advised that the person may attend an immigration office and obtain a hard copy of the visa for a fee of $40.
It is the responsibility of the Lawyer, Licensed Settlement Agent or Mortgagee to be satisfied, by taking reasonable steps in the circumstances, that the person is who they claim to be and has the authority to transact with the interest in land. We are advised that for New Zealanders, a stamped passport is a visa. It may be appropriate to expect that a foreign citizen would provide suitable evidence by obtaining a hard copy of their visa from the Department of Immigration.
If a client with a foreign passport and a rates notice does not have an Australian or other driver's licence but does have a Medicare card or a Centrelink car, can those documents be used in place of the driver's licence even though they are not in the same category?
It is the responsibility of the lawyer, licensed settlement agent or mortgagee to be satisfied, by taking reasonable steps in the circumstances, that the person is who they claim to be and has the authority to transact with the interest in land. The lawyer, licensed settlement agent or mortgagee needs to take whatever steps are necessary to satisfy themselves in the circumstances.
Do you require a current rates notice to be produced to an Australian consular officer if you are purchasing a property and mortgaging at the same time?
No - a current rates notice is not required to be produced to an Australian consular officer for identification purposes if you are purchasing and mortgaging at the same time (lodgement of Transfer of Land and mortgage forms together). However if you are currently the registered proprietor/owner and signing a new mortgage as mortgagor then part of the identification process should be the production of a current rates notice to an Australian Consular Officer at the time of identification.
Further advice and support
Where can I obtain a copy of the Verification of Identity Practice?
The Verification of Identity Practice can be found in Chapter 14 of the Land titles registration practice manual.
Who do I contact if I have questions about the Verification of Identity Practice?
Queries about the Verification of Identity Practice should be directed to Customer Service on +61 (0)8 9273 7373 or 1300 556 224 for country callers. For those persons who are thinking about or are in the process of selling their property, queries should be directed to your licensed settlement agent, lawyer or financial institution who will be able to assist.