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Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.
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the recording in the Register kept under the Act of approved
determinations of native title and any other matters relating to
native title rights and interests that the Registrar-General
considers appropriate, and
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the consequences of recording, or omitting to record,
information as to native title rights and interests in the Register
so far as the payment of compensation from the Torrens
Assurance Fund is concerned, and
(c) to revise and simplify the provisions of the Act dealing with the
lapsing and cancellation of cautions recorded on qualified folios of the
Register, and
(d) to expand the category of dealings that the Registrar-General may
record despite the presence of a caveat on the title, unless the caveat
specifically prohibits the recording of the type of dealing concerned,
and
(e) to tighten the restrictions on the lodgment of a further caveat by the
same caveator in respect of the same estate or interest and purporting
to be based on the same facts as .an earlier caveat, and
(f)
to provide that compensation is payable for pecuniary loss suffered if a
caveat is lodged without reasonable cause, without the additional
requirement (as at present) that the caveat be lodged "wrongfully",
and
(g) to make further provision as to the manner in which approved forms
used under the Act may be authenticated, and
(h) to make other changes by way of statute law revision and to include
savings and transitional provisions.
Clause 2 provides for the commencement of the proposed Act on a day or
days to be appointed by proclamation.
Clause 3 is a formal provision giving effect to the amendments to the Real
Property Act 1900 set out in Schedule 1.
Schedule 1
Amendments
Giving of notice
Schedule 1 [2] revises a provision that deals with the powers of the
Registrar-General concerning the circumstances and manner in which notice
of the intended exercise or performance of functions and other actions under
the Act may be given. In addition to the current ways in which the
Registrar-General may give notice, it is now proposed that the
Registrar-General may direct another person, such as, for example, an
applicant for the conversion of a common law title to Torrens title, to give
notice of the proposed action to persons who may be affected by it in a
manner and form approved by the Registrar-General. Schedule 1 [1] and [3]
make consequential amendments.
Explanatory note page 2
Schedule 1 [4] extends the power of the Registrar-General to give notice of
any proposed action by the Registrar-General that alters the Register (and not
merely, as at present, of the lodgment of a dealing for registration) to any
person who the Registrar-General considers should be notified of it.
Schedule 1 [5][8] make consequential amendments.
Recording of native title in Register
Schedule 1 [9] empowers the Registrar-General to record approved
determinations of native title and other matters relating to native title rights
and interests that the Registrar-General considers appropriate in the Register.
Schedule 1 [23] provides that no claim for compensation may be made on
the Torrens Assurance Fund for loss, damage or deprivation because of the
recording of, or failure to record, an approved determination of native title or
other matter relating to native title rights and interests in the Register. This
bar on claims does not extend however to an error made by the
Registrar-General in recording matter in the Register (such as, for example,
the recording of matter concerning native title on the wrong folio or the
incorrect recording of matter on the correct folio).
Lapsing and cancellation of cautions recorded on qualified
folios
Schedule 1 [10] replaces section 28M of the Act, which deals with the
lapsing and cancellation of cautions recorded on qualified folios of the
Register, to make its effect clearer. (See proposed sections 28M28MH.)
The existing operation of section 28M is maintained except in one respect.
This relates to applications for the cancellation of cautions that contain a
notation to the effect that, in the opinion of the Registrar-General, the title of
the registered proprietor of the land comprised in the qualified folio depends
on the operation of a statute of limitations (that is, arises under a possessory
title). Currently, an application for cancellation of such a caution may be
made only after 12 years have elapsed since the qualified folio was created. It
is now proposed that the registered proprietor of land comprised in such a
folio may apply for cancellation of the caution 12 years after the adverse
occupation of the land on which the title is based commenced. This is in
keeping with the terms of the Limitation Act 1969. (See proposed section
28ME.) Schedule 1 [26] inserts a transitional provision to enable cautions in
such cases to be cancelled after 12 years adverse occupation whether the
qualified folio concerned was created before or after the commencement of
the provision.
Explanatory note page 3
Caveats
Schedule 1 [13] specifies the means by which the Registrar-General may
satisfy the current requirement for the giving of notice of the lodgment of a
caveat to the registered proprietor of the estate or interest affected by the
caveat unless the consent of the registered proprietor is endorsed on the
caveat.
Schedule 1 [15] and [16] expand the current list of dealings that may be
recorded in the Register despite the presence of a caveat on the title, unless
the caveat specifically prohibits the type of dealing concerned. Schedule
1 [14] makes a consequential amendment.
Schedule 1 [17] omits references to service of certain notices on a caveator
by certified mail (to accord with a change in mailing services offered by
Australia Post) and inserts instead references to service by post.
Schedule 1 [18] revises a provision dealing with restrictions on lodgment of
further caveats if an earlier caveat, by the same caveator in respect of the
same estate or interest and purporting to be based on the same facts, lapses or
is withdrawn. The operation of the current provision is clarified. It is also
expanded to provide that a further caveat of the kind to which the provision
applies is of no effect if it is lodged after an application is made to the
Registrar-General for the preparation of a notice to lapse the earlier caveat,
unless the Supreme Court makes an order giving leave for the further caveat
to be lodged.
Schedule 1 [19] revises a provision dealing with the payment of
compensation for pecuniary loss suffered by a person because of the
lodgment or lapsing of, or refusal or failure to withdraw, a caveat. Currently,
the entitlement to compensation arises only if the offending action, refusal or
failure is done or omitted both wrongfully and without reasonable cause. The
requirement for the proof of wrongfulness is now omitted. This omission has
the effect of reinstating the law that applied before 1986 when certain
amendments to the Act relating to caveats were enacted. Schedule 1 [26]
inserts a transitional provision to the effect that the relevant provision, as
amended by the proposed Act, does not apply to caveats lodged before the
commencement of the amended provision.
Approved forms
Schedule 1 [20][22] revise a provision that deals with the supply or sale,
and use, of forms for the purposes of the Act. A stipulation that approved
forms must be sealed with the Registrar-General's seal is replaced with a
requirement that approved forms may either be authenticated in that manner
or in any other manner that the Registrar-General approves.
Explanatory note page 4
Amendments by way of law revision and savings and
transitional provisions
Schedule 1 [11] and [12] contain amendments, by way of law revision, to
headings to more correctly and clearly express the content of the sections
concerned.
Schedule 1 [24] revises a provision, by way of law revision, to include
reference to proceedings under the Act in the Land and Environment Court.
Schedule 1 [25] enables regulations of a savings or transitional nature to be
made as a consequence of the enactment of the proposed Act.
Explanatory note page 5