For a transfer of mortgage, the Subscriber must take reasonable steps to verify the identity of the mortgagor by ensuring that the transferee mortgagee has complied with the requirements under the Land Titles Legislation and any Prescribed Requirements of the Jurisdiction in which the land the subject of the Conveyancing Transaction is situated. This requirement in the Tasmanian Participation Rules only applies to Registry Instruments and other Documents lodged electronically, not to other arrangements such as equitable assignments.
A Subscriber must verify the identity of any Client or Client Agent before providing them a paper certificate of title.
How should Verification of Identity be undertaken?
In all of the circumstances outlined above in the section 'When is Verification of Identity required', a Subscriber is required to take reasonable steps to verify the identity of the Person.
Where a Subscriber is an organisation, any duly authorised Person can undertake the verification of identity.
“Reasonable steps” is a commonly used legal concept. When applied to Subscribers and mortgagees, it means the taking of such steps as an ordinarily prudent Subscriber or mortgagee would have taken in the circumstances and in the ordinary course of his or her business. Whether reasonable steps were taken will be a question of fact depending on the circumstances of the individual case. Ultimately, this would be determined by a Court on an objective basis.
The Subscriber decides what steps to take to verify the Person’s identity. What constitutes reasonable steps may be influenced by various factors that when taken into account contribute to a Subscriber being able to reasonably have confidence in the Person’s identity. Examples of these factors might include the length of time a Subscriber has known the Person or whether they have represented the Person on previous occasions.
Where a mortgagee represented by a Subscriber undertakes the verification of identity and therefore determines what steps to take to verify the mortgagor’s identity, the Subscriber must be reasonably satisfied that the mortgagee took reasonable steps. It is for a Subscriber to assess how it can be reasonably satisfied in the circumstances.
A standard for undertaking verification of identity will be set out in the Recorder’s Directions and Participation Rules. This Verification of Identity Standard is not mandatory. However, if this Verification of Identity Standard is properly carried out by one of the prescribed categories of people, the Subscriber will be deemed to have taken reasonable steps to verify identity. The Verification of Identity Standard is one set of reasonable steps but there are other reasonable steps that can be taken to verify identity.
Subscribers are required to retain evidence supporting the verification of identity in order to demonstrate that reasonable steps were taken.
May I appoint someone to undertake Verification of Identity on my behalf?
A Subscriber can use an agent to undertake verification of identity on its behalf. A Subscriber that engages an agent to conduct a verification of identity should direct the agent how to conduct the verification of identity.
If the Subscriber appoints the agent as an Identity Agent, the Subscriber must direct the Identity Agent to apply the Verification of Identity Standard.
For more information on the appointment of an Identity Agent refer to Section 5.7 of the ARNECC Guidance Note on Verification of Identity.
The Subscriber may also appoint an agent, who is not an Identity Agent, to undertake verification of identity and may direct the agent to conduct the verification of identity in some other way that constitutes taking reasonable steps. If the Subscriber appoints an agent who is not an Identity Agent, the Subscriber cannot rely on the deeming provision in Recorder’s Directions 5.6. or Participation Rule 6.5.6.
A Subscriber should obtain from their agent supporting documentation so the Subscriber can make the required verification of identity certification. A Subscriber who intends to rely on verification of identity undertaken by an agent on its behalf should take steps to confirm that the agent has conducted the verification of identity in accordance with the Subscriber’s directions, and with an appropriate level of care and attention. The Subscriber should consider the supporting documentation provided to the Subscriber and, if it contains discrepancies or inconsistencies, the Subscriber should make further enquiries.
How do I verify the identity of my Client or Client Agent who is overseas?
You need to decide what steps to take to verify the Person’s identity having regard to the available services and options under the circumstances.
One option may be to utilise the services of an Australian Embassy, High Commission or Consulate (as set out in the Appendix), coupled with further steps in order for the Subscriber or mortgagee (represented by a Subscriber) to be reasonably confident in the Person’s identity.
Further steps may include:
- making enquiries with the Client or Client Agent or third parties
- where the identity Documents are Australian using electronic verification services
- where it is a foreign identity Document checking the Document looks the same as on the respective country’s government website
- where the identity Document is in another language having the identity Document translated by an authorised translator
- where the verification is unable to be conducted face-to-face due to remoteness conducting the verification by electronic means with further steps to satisfy yourself of the Person’s identity.
My Client or Client Agent has one name on his/her passport and an anglicised or abbreviated version of that name on his/her driver’s license. What should I do?
It is possible that Documents issued by different government departments may have differing versions of a name.
You must take reasonable steps to ensure the Person required to be identified is one and the same Person referenced in the differing Documents. Examples which may be appropriate in some circumstances are:
sighting other types of Documents or letters issued by an employer, government agency or educational institution and showing the Person’s name and other details;
seeking confirmation from relevant organisations of the information given by the Person and whether they are aware that the Person is also known by another name; and
asking the Person questions about the reasons for the differing names, recording their answers and recording whether and on what basis you considered those answers to be satisfactory.
I have known some of my Clients for over 30 years and have previously used their legal names in legal Documents. Why should I verify their identity just because I have not seen them in the last two years?
If the Verification of Identity Standard is not applied, the Subscriber must determine what actions it considers would, in the circumstances, constitute the taking of reasonable steps to verify the Client or Client Agent’s identity. A situation where you have known the Client or Client Agent for over 30 years may be one where you decide that the requirement to take reasonable steps to identify the Client or Client Agent is satisfied by the years of interaction with that Client or Client Agent.