The Far Side of the World – The 'Three Key Proof Requirements' and Automation of the Land Registers in New Zealand and Australia

Abstract

In the 21st century the drive to automation of registries (land registries in particular) is irresistible. There are obvious advantages to be achieved in terms of speed, cost savings, and immediacy of registration. Automation provides access to an overwhelming amount of “on line” information unthinkable in terms of the operation of a manual system. The scale of information enables audits and monitoring of registration practices not tenable in the manual environment. However, a more sophisticated dialogue is necessary where the operating system is more than a mere “recordation of deeds.” This is especially so in Torrens jurisdictions, where successful registration creates a State guarantee of title. In such an environment, a post registration audit may discover registration irregularities, but this will be of limited value. This is because as consequence of registration being achieved, the State guarantee of title applies in the absence of fraud by the registrant. This occurs even if the dealing is void or voidable. In New Zealand, a fully automated Torrens register, Landonline, has been in operation since 2003. In Australia, an Electronic Conveyancing National Law (ECNL) is presently being designed for introduction over the eight separate State jurisdictions that make up Australia. Three key proof requirements have been developed in order to assess the comparative worth of each of the manual system, Landonline and ECNL. These requirements focus on issues that have central importance in an automated environment. This paper first explains the three key proof requirements, and why they have validity as a measuring tool. The three key proof requirements are then utilised to analyse the comparative worth of each system. Under this analysis the position is taken that any new system should at least be as sound as the system it replaces. This paper concludes that the protections inherent in the manual Torrens system have not been translated into comparable protections under New Zealand’s Landonline system. It is difficult to form a clear assessment at this stage in regards to the credibility of ECNL as the design of this system is not yet settled and its operation is intended to allow for regional variations in registration practice between the Australian States. The paper closes by questioning whether an automated Torrens system should include a mechanism for overturning void or voidable registration in the absence of fraud being found. The New Zealand Law Commission has recently proposed such a test. However, the threshold it has proposed for overturning registration is suggested to be set at too low a level, incompatible with the Torrens concept of certainty of registration.