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IGA Review into Electronic Conveyancing

The AICWA recently met with consultants from Dench McClean Carlson as part of the review of the Intergovernmental Agreement (IGA) for Electronic Conveyancing.

The review is well over due given it was never fast tracked when the decision was made to partner with private equity firms to build and deliver an electronic platform under the COAG agreement.  

While we are confident our feedback will be represented in the update to the various state Ministers nationally and ARNECC, the AICWA is advocating two key suggestions.

1. Resourcing of ARNECC

The Australian Registrars' National Electronic Conveyancing Council (ARNECC) was established to facilitate the implementation and ongoing management of the regulatory framework for electronic conveyancing. However, other than a principle agreement by the participating states and territories the means by which ARNECC would be funded to undertake their role remains largely unclear. It is also unclear as to the shared responsibility of the Federal Government or the various states to facilitate e-conveyancing in Tasmania and the Northern Territory.

ARNECC and their various Ministers in each jurisdiction have for the most part assumed responsibility for collectively being the custodians of national e-conveyancing and therefore, must ensure its sustainability to deliver workable regulatory frameworks.

AICWA is proposing a funding model whereby a levy is collected from each successful ELNO lodgement. This can either be collected as a flat fee or a percentage of the total cost of lodgement.

A modest negligible levy would contribute to negating the responsibility of individual states and territories having to secure appropriate funding for the ongoing support of ARNECC. 

A creation of a fund from the levy would serve to manage a great many number of factors that would otherwise jeopardise annual resourcing of ARNECC.

Regardless of what funding model is eventually proposed there is no disputing that ARNECC are significantly underfunded and require expertise and resources to maintain confidence in their ability to administer and deliver regulatory frameworks.           

In order to deliver the accountability and oversight consumers and the conveyancing profession would expect from the resourcing of ARNECC, the AICWA would suggest the creation of a national e-conveyancing committee or an increase of ARNECC’s representation to include independents. 

2. Independent Representation

In order to assist ARNECC, it is proposed that either an independent oversight advisory committee be established or for ARNECC to increase its representation to include independent representation from appropriately qualified and experienced conveyancing professionals.

While the IGA makes provisions for ARNECC under section 7.4 to establish a subcommittee, no such committee has ever been established. ARNECC have for the most part relied upon limited resourcing and occasional stakeholder engagement to guide them in developing a regulatory framework.

As reported in the Sydney Morning Heraldon 23 Nov 2018 “Regulating the regulator: 'Where is the intellectual rigour?” ASIC chief James Shipton, was forced to defend ASIC's structure at the Banking Royal Commission as to why there are no non-executive, independent members on its governing body, given other regulators such as the ACCC, the Reserve Bank and the Competition and Markets Authority in the UK. 1.

The creation of an independent committee or expansion of ARNECC to include independents would be consistent with the expectations of a national regulator. Furthermore, the expertise and knowledge windfall would only strengthen ARNECC’s ability to guide the COAG agreement to its end goal of delivering a truly national e-conveyancing outcome.

An immediate solution to an advisory committee could be to leveraged off the existing national Electronic Conveyancing Group (ECG) established in collaboration between the Australian Bankers’ Association, Australian Institute of Conveyancers and the Law Council of Australia.

The ECG was formed with the vision of becoming a collaborative voice of the primary user groups of the National Electronic Conveyancing Platform, PEXA.

The ECG has on many occasions identified possible solutions in contributing to the efficiency of the national electronic conveyancing system and the development of effective relationships between the users of PEXA and ARNECC.

The AICWA would be highly supportive of an effort being made to have ARNECC collaborate with the ECG for the purposes of being the principal driver of both the legal and practical issues associated with the introduction of electronic conveyancing for banks, licensed conveyancers and legal practitioners nationally. 

AICWA has independently canvased many opinions from the conveyancing industry both locally and nationally, identifying an overwhelming preference for an ARNECC funding model which delivers increased stakeholder engagement and independent representation.





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