Identity fraud and land registration systems : an Australian perspective

There is no doubt that fraud in relation to land transactions is a problem that resonates amongst land academics, practitioners, and stakeholders involved in conveyancing. As each land registration and conveyancing process increasingly moves towards a fully electronic environment, we need to make sure that we understand and guard against the frauds that can occur. What this paper does is examine the types of fraud that have occurred in paper-based conveyancing systems in Australia and considers how they might be undertaken in the National Electronic Conveyancing System (NECS) that is currently under development. Whilst no system can ever be infallible, it is suggested that by correctly imposing the responsibility for identity verification on the appropriate individual, the conveyancing system adopted can achieve the optimum level of fairness in terms of allocation of responsibility and loss. As we sit on the cusp of a new era of electronic conveyancing, the framework suggested here provides a model for minimising the risks of forged mortgages and appropriately allocating the loss. Importantly it also recognises that the electronic environment will see new opportunities for those with criminal intent to undermine the integrity of land transactions. An appreciation of this now, can see the appropriate measures put in place to minimise the risk.

A cybernetic approach to land management issues

This work is a digital version of a dissertation that was first submitted in partial fulfillment of the Degree of Doctor of Philosophy at the Queensland University of Technology (QUT) in March 1994. The work was concerned with problems of self-organisation and organisation ranging from local to global levels of hierarchy. It considers organisations as living entities from local to global things that a living entity – more particularly, an individual, a body corporate or a body politic - must know and do to maintain an existence – that is to remain viable – or to be sustainable. The term ‘land management’ as used in 1994 was later subsumed into a more general concept of ‘natural resource management’ and then merged with ideas about sustainable socioeconomic and sustainable ecological development. The cybernetic approach contains many cognitive elements of human observation, language and learning that combine into production processes. The approach tends to highlight instances where systems (or organisations) can fail because they have very little chance of succeeding. Thus there are logical necessities as well as technical possibilities in designing, constructing, operating and maintaining production systems that function reliably over extended periods. Chapter numbers and titles to the original thesis are as follows: 1. Land management as a problem of coping with complexity 2. Background theory in systems theory and cybernetic principles 3. Operationalisation of cybernetic principles in Beer’s Viable System Model 4. Issues in the design of viable cadastral surveying and mapping organisation 5. An analysis of the tendency for fragmentation in surveying and mapping organisation 6. Perambulating the boundaries of Sydney – a problem of social control under poor standards of literacy 7. Cybernetic principles in the process of legislation 8. Closer settlement policy and viability in agricultural production 9. Rate of return in leasing Crown lands

An integrated information management model for ecologically sustainable development

Ecologically sustainable development has become a major feature of legal systems at the international, national and local levels throughout the world. In Australia, governments have responded to environmental crises by enacting legislation imposing obligations and restrictions over privately-owned land. Whilst these obligations and restrictions may well be necessary to achieve sustainability, the approach to management of information concerning these instruments is problematic. For example, management of information concerning obligations and restrictions in Queensland is fragmented, with some instruments registered or recorded on the land title register, some on external registers, and some information only available in the legislation itself. This approach is used in most Australian jurisdictions. This fragmented approach has led to two separate but interconnected problems. First, the Torrens system is no longer meeting its goal of providing a complete and accurate picture of title. Second, this uncoordinated approach to the management of land titles, and obligations and restrictions on land use, has created a barrier to sustainable management of natural resources. This is because compliance with environmental laws is impaired in the absence of easily accessible and accurate information. These problems demonstrate a clear need for reform in this area. To determine how information concerning these obligations and restrictions may be most effectively managed, this thesis will apply a comparative methodology and consider three case studies, which each utilise different models for management of this information. These jurisdictions will be assessed according to a set of guidelines for comparison to identify which features of their systems provide for effective management of information concerning obligations and restrictions on title and use. Based on this comparison, this thesis will devise a series of recommendations for an effective system for the management of information concerning obligations and restrictions on land title and use, taking into account any potential legal issues and barriers to implementation. This series of recommendations for reform will be supplemented by suggested draft legislative provisions.

A prototype system for the digital lodgement of spatial data

This dissertation develops the model of a prototype system for the digital lodgement of spatial data sets with statutory bodies responsible for the registration and approval of land related actions under the Torrens Title system. Spatial data pertain to the location of geographical entities together with their spatial dimensions and are classified as point, line, area or surface. This dissertation deals with a sub-set of spatial data, land boundary data that result from the activities performed by surveying and mapping organisations for the development of land parcels. The prototype system has been developed, utilising an event-driven paradigm for the user-interface, to exploit the potential of digital spatial data being generated from the utilisation of electronic techniques. The system provides for the creation of a digital model of the cadastral network and dependent data sets for an area of interest from hard copy records. This initial model is calibrated on registered control and updated by field survey to produce an amended model. The field-calibrated model then is electronically validated to ensure it complies with standards of format and content. The prototype system was designed specifically to create a database of land boundary data for subsequent retrieval by land professionals for surveying, mapping and related activities. Data extracted from this database are utilised for subsequent field survey operations without the need to create an initial digital model of an area of interest. Statistical reporting of differences resulting when subsequent initial and calibrated models are compared, replaces the traditional checking operations of spatial data performed by a land registry office. Digital lodgement of survey data is fundamental to the creation of the database of accurate land boundary data. This creation of the database is fundamental also to the efficient integration of accurate spatial data about land being generated by modem technology such as global positioning systems, and remote sensing and imaging, with land boundary information and other information held in Government databases. The prototype system developed provides for the delivery of accurate, digital land boundary data for the land registration process to ensure the continued maintenance of the integrity of the cadastre. Such data should meet also the more general and encompassing requirements of, and prove to be of tangible, longer term benefit to the developing, electronic land information industry.

Identity fraud and torrens - minimising the risks and allocating the loss to achieve a sustainable system

Immediate indefeasibility is the cornerstone of the Torrens system of land registration. However, when combined with the apparent ease in which forged mortgages become registered, the operation of this doctrine can come into question. This article seeks to argue that, rather than question indefeasibility, the focus should be on the verification of identity of parties to land transactions. Whilst no system can ever be infallible, it is suggested that by correctly imposing the responsibility for identity verification on the appropriate individual, the Torrens system can retain immediate indefeasibility as its paramount principle, yet achieve the optimum level of fairness in terms of allocation of responsibility and loss. With the dawn of a new era of electronic conveyancing about to begin, the framework suggested here provides a model for minimising the risks of forged mortgages and appropriately allocating the loss.

Electronic conveyancing in Australia: Is anyone concerned about security?

Three proof requirements as essential for a sustainable land registration system. These were proof of identity, proof of ownership, and authority to deal. Our attention in this paper is drawn to the latter two requirements and will ask whether the introduction of the Property Exchange of Australia (PEXA), and its underpinning regulatory regime will meet the concerns that we have in relation to proof of ownership and authority to deal. In drawing out some problems with PEXA, we then offer an innovative idea, sourced from the transfer of equities that could serve to generate discussion on how we can ensure the Torrens system of land registration is sustainable for another 160 years.

Electronic conveyancing in Australia : is anyone concerned about security?

We have previously suggested that three proof requirements are essential for a sustainable land registration system. These were proof of identity, proof of ownership and authority to deal. Our attention in this article is drawn to the security framework that surrounds these requirements. We will ask whether the introduction of the Property Exchange of Australia (PEXA), and its underpinning regulatory regime will meet the concerns that we have in relation to them. In drawing out some problems with PEXA, we then offer an innovative idea, sourced from the transfer of equities that could serve to generate discussion on how we can ensure the Torrens system of land registration is sustainable for another 160 years. We also canvass some more incremental suggestions that evolve out of what we currently do, as well as outlining some comparative externally sourced ideas as to how the transfer and ownership of land can be made safer for all citizens. Such a goal is imperative when land transfer and secure property ownership is a critical component of the economic infrastructure of a modern society.

Dealing with unique interests in Crown Land : a Queensland perspective

Security of tenure is the cornerstone of the land management system in Australia. Freehold title is protected throug indefeasibility of title entrenched in legislation and protection of registrable interests in land is offered through the Statutory Assurance Fund. For those with interests pertaining to Crown Land no such protection is offered, although this position is not uniform across Australia. Notably those with Crown leasehold interests or a profit a prendre on Crown Land in Queensland are not protected through registration on the freehold land register and do not have the benefit of indefeasibility of title. The issue of management of interests pertaining to Crown Land has become increasingly relevant due to the complexities associated with balancing public interests including native title with more commercial interests in land generated through carbon sequestration, forestry and mining. This paper considers the framework for the management of Crown Land in Queensland and the adequacy of this framework for commercial interests that pertain to Crown Land.

Land fraud and inappropriate dealings in an electronic environment : An Australian and New Zealand perspective

The thesis presented in this paper is that the land fraud committed by Matthew Perrin in Queensland and inflicted upon Roger Mildenhall in Western Australia demonstrates the need for urgent procedural reform to the conveyancing process. Should this not occur, then calls to reform the substantive principles of the Torrens system will be heard throughout the jurisdictions that adopt title by registration, particularly in those places where immediate indefeasibility is still the norm. This paper closely examines the factual matrix behind both of these frauds, and asks what steps should have been taken to prevent them occurring. With 2012 bringing us Australian legislation embedding a national e-conveyancing system and a new Land Transfer Act for New Zealand we ask what legislative measures should be introduced to minimise the potential for such fraud. In undertaking this study, we reflect on whether the activities of Perrin and the criminals responsible for stealing Mildenhall's land would have succeeded under the present system for automated registration utilised in New Zealand.

How can land and urban development make houses healthier?

Traditionally, the main focus of the professional community involved with indoor air quality has been indoor pollution sources, preventing or reducing their emissions, as well as lowering the impact of the sources by replacing the polluted indoor air with "fresh" outdoor air. However, urban outdoor air cannot often be considered "fresh", as it contains high concentrations of pollutants emitted from motor vehicles - the main outdoor pollution sources in cities. Evidence from epidemiological studies conducted worldwide demonstrates that outdoor air quality has considerable effects on human health, despite the fact that people spend the majority of their time indoors. This is because pollution from outdoors penetrates indoors and becomes a major constituent of indoor pollution. Urban land and transport development has significant impact on the overall air quality of the urban airshed as well as the pollution concentration in the vicinity of high-density traffic areas. Therefore, an overall improvement in indoor air quality would be achieved by lowering urban airshed pollution, as well as by lowering the impact of the hot spots on indoor air. This paper explores the elements of urban land and vehicle transport developments, their impact on global and local air quality, and how the science of outdoor pollution generation and transport in the air could be utilized in urban development towards lowering indoor air pollution.

The role of land use and psycho-social factors in high density residents' work travel mode choices : implications for sustainable transport policy

Imperatives to improve the sustainability of cities often hinge upon plans to increase urban residential density to facilitate greater reliance on sustainable forms of transport and minimise car use. However there is ongoing debate about whether high residential density land use in isolation results in sustainable transport outcomes. Findings from surveys with residents of inner-urban high density dwellings in Brisbane, Australia, suggest that solo car travel accounts for the greatest modal share of typical work journeys and attitudes toward dwelling and neighbourhood transport-related features, residential sorting factors and socio-demographics, alongside land use such as public transport availability, are significantly associated with work travel mode choice. We discuss the implications of our findings for transport policy and management including encouraging relatively sustainable intermodal forms of transport for work journeys.

Debate on statutory control of the surveying profession in Queensland : 1907 to 1975

This article was written in 1997. After a 2009 review the content was left mostly unchanged - apart from this re-written abstract, restructured headings and a table of contents. The article deals directly with professional registration of surveyors; but it also relates to government procurement of professional services. The issues include public service and professional ethics; setting of professional fees; quality assurance; official corruption; and professional recruitment, education and training. Debate on the Land Surveyors Act 1908 (Qld) and its amendments to 1916 occurred at a time when industrial unrest of the 1890s and common market principles of the new Commonwealth were fresh in peoples’ minds. Industrial issues led to a constitutional crisis in the Queensland’s then bicameral legislature and frustrated a first attempt to pass a Surveyors Bill in 1907. The Bill was re-introduced in 1908 after fresh elections and Kidston’s return as state premier. Co-ordinated immigration and land settlement polices of the colonies were discontinued when the Commonwealth gained power over immigration in 1901. Concerns shifted to protecting jobs from foreign competition. Debate on 1974 amendments to the Act reflected concerns about skill shortages and professional accreditation. However, in times of economic downturn, a so-called ‘chronic shortage of surveyors’ could rapidly degenerate into oversupply and unemployment. Theorists championed a naïve ‘capture theory’ where the professions captured governments to create legislative barriers to entry to the professions. Supposedly, this allowed rent-seeking and monopoly profits through lack of competition. However, historical evidence suggests that governments have been capable of capturing and exploiting surveyors. More enlightened institutional arrangements are needed if the community is to receive benefits commensurate with sizable co-investments of public and private resources in developing human capital.

Early land grants and reservations : Any lessons from the Queensland experience for the sustainability challenge to land ownership

Environmentalists have called for a new property paradigm premised on the idea of land ownership as a delegated responsibility to manage land and resources for the public benefit. An examination of Crown freehold grants from the beginnings of settlement until the 1890s in Queensland shows that fee simple titles were granted subject to express conditions and reservations designed to reserve useful natural resources to the Crown, and to promote public purposes. Over time, legislative regulation of landowner’s rights rendered obsolete the use of express conditions and reservations in grants. One result of this change was that the inherently limited nature of fee simple ownership, and the communal obligations to which it is subject, are less transparent than in colonial times.