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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Electronic Conveyancing Enforcement Bill
2022
Contents
Page
Part 1 Preliminary
1 Name of Act 2
2 Commencement 2
3 Object of Act 2
4 Definitions 2
Part 2 Enforcement of Electronic Conveyancing National Law (NSW)
Division 1 Enforceable undertakings
5 Registrar may accept undertakings 3
6 Content of enforceable undertaking 3
7 When enforceable undertaking takes effect 3
8 Withdrawal or variation of enforceable undertaking 3
9 Enforcement of enforceable undertaking 3
Division 2 Remedial directions
10 Registrar may give remedial direction 4
11 Interim remedial directions 4
12 Content of remedial direction 5
13 Revocation of remedial direction 5
14 Registrar not to give remedial direction in certain circumstances 5
15 Appeal against decision to give remedial direction 5
Electronic Conveyancing Enforcement Bill 2022 [NSW]
Contents
Page
Division 3 Enforcement orders
16 Registrar may apply for enforcement order 5
17 Time for commencing proceedings 6
18 Effect of enforceable undertaking 6
Part 3 Miscellaneous
19 Act to bind Crown 7
20 Personal liability 7
21 Regulations 7
Schedule 1 Savings, transitional and other provisions 8
Page 2
I certify that this public bill, which originated in the Legislative Assembly, has finally passed
the Legislative Council and the Legislative Assembly of New South Wales.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2022
New South Wales
Electronic Conveyancing Enforcement Bill
2022
Act No , 2022
An Act to provide for the enforcement of the Electronic Conveyancing National Law (NSW); and
for other purposes.
I have examined this bill and find it to correspond in all respects with the bill as finally
passed by both Houses.
Assistant Speaker of the Legislative Assembly.
Electronic Conveyancing Enforcement Bill 2022 [NSW]
Part 1 Preliminary
The Legislature of New South Wales enacts--
Part 1 Preliminary
1 Name of Act
This Act is the Electronic Conveyancing Enforcement Act 2022.
2 Commencement
This Act commences on the date of assent to this Act.
3 Object of Act
The object of this Act is to promote compliance with the Electronic Conveyancing
National Law (NSW) by establishing mechanisms for the enforcement of the Law.
4 Definitions
(1) In this Act--
enforceable undertaking--see section 5.
enforcement order--see section 16(1).
enforcement provision means--
(a) the Electronic Conveyancing National Law (NSW), section 18A, or
(b) the Electronic Conveyancing National Law (NSW), section 34, or
(c) a requirement of a remedial direction or an interim remedial direction.
interim remedial direction--see section 11(1).
remedial direction--see section 10(1).
Note-- The Interpretation Act 1987 contains definitions and other provisions that affect the
interpretation and application of this Act.
(2) Words and expressions used in this Act and also in the Electronic Conveyancing
National Law (NSW) have the same meanings as in the Law.
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Electronic Conveyancing Enforcement Bill 2022 [NSW]
Part 2 Enforcement of Electronic Conveyancing National Law (NSW)
Part 2 Enforcement of Electronic Conveyancing National Law
(NSW)
Division 1 Enforceable undertakings
5 Registrar may accept undertakings
The Registrar may accept a written undertaking (an enforceable undertaking) given
by an ELNO if the Registrar reasonably believes the ELNO is contravening, has
contravened or is about to contravene--
(a) a provision of the Electronic Conveyancing National Law (NSW), or
(b) a provision of the operating requirements, or
(c) a condition of the approval under the Electronic Conveyancing National Law
(NSW), section 15 to which the ELNO is subject.
6 Content of enforceable undertaking
(1) An enforceable undertaking must specify--
(a) the contravention to which the enforceable undertaking relates, and
(b) the measures the ELNO has agreed to implement to remedy or prevent the
contravention, and
(c) the period or periods by the end of which the measures must be implemented.
(2) A failure to comply with this section does not affect the validity of an enforceable
undertaking.
7 When enforceable undertaking takes effect
An enforceable undertaking takes effect and becomes enforceable--
(a) when written notice of the Registrar's decision to accept the undertaking is
given to the ELNO who gave the undertaking, or
(b) on a later date specified by the Registrar in the notice.
8 Withdrawal or variation of enforceable undertaking
(1) An ELNO who has made an enforceable undertaking may, at any time, with the
written agreement of the Registrar--
(a) withdraw the undertaking, or
(b) vary the undertaking.
(2) The Registrar may, at any time, with the written agreement of an ELNO who has
made an enforceable undertaking, withdraw the Registrar's acceptance of the
undertaking.
(3) The provisions of an enforceable undertaking must not be varied to provide for a
different alleged contravention.
(4) An enforceable undertaking ceases to have effect if--
(a) it is withdrawn by the ELNO who made it, in accordance with this section, or
(b) acceptance of the undertaking is withdrawn by the Registrar.
9 Enforcement of enforceable undertaking
(1) The Registrar may apply to the Supreme Court for an order under this section if the
Registrar reasonably believes an ELNO has contravened an enforceable undertaking.
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Electronic Conveyancing Enforcement Bill 2022 [NSW]
Part 2 Enforcement of Electronic Conveyancing National Law (NSW)
(2) If the Court is satisfied that the ELNO who gave the enforceable undertaking has
contravened the undertaking, the Court may make 1 or both of the following orders--
(a) an order directing the ELNO to comply with the undertaking,
(b) an order discharging or varying the undertaking.
(3) In addition to the orders referred to in subsection (2), the Court may make other
orders the Court considers appropriate in the circumstances, including orders
directing the ELNO to pay either or both of the following to the State--
(a) the costs of the proceedings,
(b) the reasonable costs of the Registrar in monitoring compliance with the
enforceable undertaking in the future.
Division 2 Remedial directions
10 Registrar may give remedial direction
(1) The Registrar may give a written direction to an ELNO (a remedial direction) if the
Registrar reasonably believes the ELNO has contravened or is contravening a
requirement imposed by or under the Electronic Conveyancing National Law (NSW).
(2) The Registrar must not give a remedial direction to an ELNO unless--
(a) the Registrar has given written notice to the ELNO of the Registrar's intention
to give the direction, and
(b) the notice states the ELNO may make submissions to the Registrar within 14
days after the date of the notice, and
(c) the Registrar has considered submissions made by the ELNO within that
period.
11 Interim remedial directions
(1) The Registrar may give a written direction to an ELNO (an interim remedial
direction) if the Registrar--
(a) reasonably believes the ELNO has contravened or is contravening a
requirement imposed by or under the Electronic Conveyancing National Law
(NSW), and
(b) is satisfied the direction needs to be given urgently because an emergency
situation exists.
(2) For subsection (1), an emergency situation exists if the Registrar considers that,
because of the occurrence of an event or the existence of particular circumstances,
the operation, security, integrity or stability of an ELN, the titles register or the land
titles system is being, or is likely to be, jeopardised.
(3) An interim remedial direction given to an ELNO constitutes notice for section 10(2)
of the Registrar's intention to give a remedial direction on the same terms as the
interim remedial direction.
(4) Subsection (3) does not prevent the Registrar specifying in a remedial direction a
period or periods for implementation under section 12(1)(c) that is different from the
period or periods for implementation specified in the interim direction.
(5) Unless sooner revoked, an interim remedial direction for a contravention ceases to
have effect on the earliest of the following--
(a) the end of the period of 21 days after the date of the interim remedial direction,
(b) when the Registrar gives a remedial direction to the ELNO in relation to the
contravention.
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Electronic Conveyancing Enforcement Bill 2022 [NSW]
Part 2 Enforcement of Electronic Conveyancing National Law (NSW)
(6) Sections 12-15 apply to an interim remedial direction in the same way as they apply
to a remedial direction.
12 Content of remedial direction
(1) A remedial direction must specify--
(a) the contravention to which the remedial direction relates, and
(b) the measures the ELNO must implement to remedy the contravention or to
prevent the contravention occurring again, and
(c) the period or periods by the end of which the measures must be implemented.
(2) The period or periods specified under subsection (1)(c) must be reasonable in the
circumstances.
13 Revocation of remedial direction
The Registrar may, by written notice given to an ELNO, revoke a remedial direction
relating to the ELNO.
14 Registrar not to give remedial direction in certain circumstances
The Registrar must not give a remedial direction to an ELNO in relation to a
contravention if--
(a) the ELNO has given an enforceable undertaking in relation to the
contravention and the enforceable undertaking is in effect, or
(b) proceedings for an enforcement order in relation to the contravention have
been commenced but not determined.
15 Appeal against decision to give remedial direction
The Electronic Conveyancing National Law (NSW), Part 3, Division 4 applies to a
decision by the Registrar to give a remedial direction as if the decision were an
appellable decision within the meaning of section 28 of the Law.
Division 3 Enforcement orders
16 Registrar may apply for enforcement order
(1) The Registrar may apply to the Supreme Court for an order under this section (an
enforcement order) if the Registrar reasonably believes an ELNO has contravened
an enforcement provision.
(2) If the Court is satisfied the ELNO has contravened the enforcement provision, the
Court may make an order that the ELNO pay to the State an amount not exceeding
the maximum amount.
(3) In addition to the order under subsection (2), the Court may make other orders the
Court considers appropriate in the circumstances, including orders directing the
ELNO to pay either or both of the following to the State--
(a) the costs of the proceedings,
(b) the reasonable costs of the Registrar in monitoring compliance with the
enforcement provision in the future.
(4) The Court must have regard to the following in determining the amount required to
be paid under an enforcement order--
(a) the nature and extent of the contravention,
(b) the nature and extent of loss or damage suffered as a result of the
contravention, including by third parties,
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Electronic Conveyancing Enforcement Bill 2022 [NSW]
Part 2 Enforcement of Electronic Conveyancing National Law (NSW)
(c) the circumstances in which the contravention took place,
(d) whether the contravention was intentional or unintentional,
(e) whether the ELNO has previously contravened the enforcement provision to
which the order relates,
(f) the amount necessary to deter the ELNO from engaging in the contravening
conduct in the future,
(g) the damage the contravention has caused to the security or integrity of the land
titles system.
(5) An amount payable under an order made under this section is recoverable by the
State as a debt from the ELNO.
(6) In this section--
maximum amount means--
(a) for a contravention of the Electronic Conveyancing National Law (NSW),
section 18A--
(i) $10,000,000, and
(ii) for a continuing contravention--a further $250,000 for each day the
contravention continues, or
(b) for a contravention of the Electronic Conveyancing National Law (NSW),
section 34--$250,000, or
(c) for a contravention of a requirement of a remedial direction or an interim
remedial direction--$10,000,000.
17 Time for commencing proceedings
The Registrar may not apply for an enforcement order against an ELNO in relation
to a contravention of an enforcement provision more than 2 years after the Registrar
becomes aware of the contravention.
18 Effect of enforceable undertaking
(1) No proceedings may be brought under this Division in relation to a contravention of
an enforcement provision if--
(a) there is an enforceable undertaking in effect in relation to the contravention, or
(b) an enforceable undertaking given by the ELNO in relation to the contravention
has been completely discharged.
(2) If the Registrar accepts an enforceable undertaking in relation to a contravention of
an enforcement provision after proceedings under this Division in relation to the
contravention have been commenced, the Registrar must take all reasonable steps to
have the proceedings discontinued as soon as practicable.
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Electronic Conveyancing Enforcement Bill 2022 [NSW]
Part 3 Miscellaneous
Part 3 Miscellaneous
19 Act to bind Crown
This Act binds the Crown.
20 Personal liability
(1) A protected person is not personally subject to liability for anything done--
(a) in good faith, and
(b) for the purpose of exercising a function under this Act.
(2) The liability instead attaches to the Crown.
(3) In this section--
done includes omitted to be done.
liability means civil liability and includes action, claim or demand.
protected person means--
(a) the Registrar, or
(b) a person acting under the direction of the Registrar.
21 Regulations
The Governor may make regulations, not inconsistent with this Act, about any matter
that by this Act is required or permitted to be prescribed or that is necessary or
convenient to be prescribed for carrying out or giving effect to this Act.
Page 7
Electronic Conveyancing Enforcement Bill 2022 [NSW]
Schedule 1 Savings, transitional and other provisions
Schedule 1 Savings, transitional and other provisions
1 Regulations
(1) The regulations may contain provisions of a savings or transitional nature consequent
on the commencement of--
(a) a provision of this Act, or
(b) a provision amending this Act.
(2) A savings or transitional provision consequent on the commencement of a provision
must not be made more than 2 years after the commencement.
(3) A savings or transitional provision made consequent on the commencement of a
provision is repealed 2 years after the commencement.
(4) A savings or transitional provision made consequent on the commencement of a
provision may take effect before the commencement but not before--
(a) for a provision of this Act--the date of assent to this Act, or
(b) for a provision amending this Act--the date of assent to the amending Act.
(5) A savings or transitional provision taking effect before its publication on the NSW
legislation website does not--
(a) affect the rights of a person existing before the publication in a way prejudicial
to the person, or
(b) impose liabilities on a person for anything done or omitted to be done before
the publication.
(6) In this section--
person does not include the State or an authority of the State.
Page 8
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