See also The Hierarchy of law.
Men and/or women who wish to rely on the principles described here should do their own research to verify any claims made, and seek independent professional advice appropriate to their circumstances.
The Right to Transfer Land by Common Law Deed
What it is, where it comes from, and why no statute has extinguished it
Before you read further
This article is not legal advice. It examines a specific common law right – the right of a man or woman to transfer land by deed – and explains why that right survives the conveyancing Acts, the Torrens system, and the licensed conveyancer regime. The sources cited are primary legal authorities. The conclusions are yours to draw.
Where the right comes from
The right to transfer land by deed is not a statutory creation. It is a common law right of ancient standing, predating any Australian legislature, any Australian court, and any Australian statute. It was part of the body of English common law received into the Australian colonies at settlement, and it has been part of Australian law from that moment.
At common law, land is transferred by deed. A deed is a formal written instrument, signed, sealed and delivered by the transferor, by which whatever right, title, or interest the transferor holds passes to the transferee. The transfer is complete at common law upon delivery of the deed. The transferee holds the estate from that moment – not from any subsequent registration, not from any government approval, and not from any statutory process.
This right did not come from Parliament. Parliament did not invent the fee simple, did not invent the deed, and did not invent the transfer. All of these things existed before any Australian Parliament was constituted. The common law carried them into Australia as part of the received legal order. They sit in the common law layer of the legal hierarchy – the layer that is prior to and foundational to the statutory system, not a creature of it.
What the Crown grant conveyed
Every (rare exceptions) parcel of privately held land in Australia traces its origin to a Crown grant. The Crown grant conveyed a fee simple – the largest estate known to the common law – together with a bundle of rights appurtenant to that land. Among those rights was the right to deal with the land, including the right to transfer the estate and the bundle by deed to another man or woman, without the permission of any government authority.
That right of transfer was not a licence. It was not a statutory permission. It was a common law right that came with the estate itself, as an incident of the fee simple. A man who holds a fee simple holds it with all the incidents of that estate at common law, including the right to transfer it.
What the Torrens system did – and did not do
When the States created the Torrens system – beginning in South Australia in 1858 and progressively adopted across all Australian colonies and States – they created a register of land titles. The register was designed to provide a single authoritative record of who held the registered title to each parcel of land.
The Torrens system created a statutory title by registration. The High Court of Australia confirmed in Breskvar v Wall (1971) 126 CLR 376 that the Torrens system is a system of title by registration – not merely a system of registration of title. Registration is the source of the statutory title and carries with it the protection of indefeasibility: the registered title, subject to certain exceptions, cannot be challenged by reference to prior dealings or defects in the prior chain.
What the Torrens system did not do – and could not do – was extinguish the underlying common law right to transfer by deed. The Torrens Acts created a new statutory layer alongside the existing common law. They did not abolish the common law. They did not use the clear, unambiguous, and express words that the principle of legality requires to extinguish a common law right of this character.
The correct understanding is this. A common law transfer by deed is effective at common law from the moment of delivery. The transferee holds the estate in equity and at general law from that moment. What the transferee does not hold – until registration – is the statutory Torrens title with its indefeasibility protection. The statutory consequences of registration are separate from and additional to the common law transfer. The statute governs those statutory consequences. It does not reach back and say the common law transfer did not occur.
What the conveyancing Acts and licensed conveyancer regime did
State conveyancing Acts and the licensed conveyancer regime created a statutory framework governing how dealings in land are to be conducted within the statutory system. They impose requirements of form, process, and professional involvement on dealings that are to be registered on the Torrens register.
A statutory provision that says registration through a licensed conveyancer is the “only way” to transfer land is, read with precision, doing something more limited than it appears. It is regulating the process by which a dealing is registered and by which the registered title moves from one holder to another within the statutory system. It is not – and cannot be, without clear words and just terms – extinguishing the underlying common law right to transfer by deed outside the statutory registration process.
Courts have consistently read general conveyancing provisions as regulating the statutory title system, not as extinguishing the underlying common law right of transfer. The principle of legality – confirmed by the High Court in Potter v Minahan (1908) 7 CLR 277 – requires that any statute purporting to extinguish a common law right must do so in terms that are clear and unambiguous. A general provision governing the process of registration does not meet that standard in relation to the common law right of transfer itself.
The principle of legality and what it requires
The principle of legality has been part of Australian common law since before Federation. Its classic Australian formulation is found in Potter v Minahan (1908) 7 CLR 277, where O’Connor J stated that it is in the last degree improbable that Parliament would abrogate an important common law right without using words that are clear and unambiguous for that purpose.
The application to the right of transfer is direct. The right to transfer land by deed at common law is an important, ancient, and well-established common law right. It is not a minor procedural option. It is an incident of the fee simple itself. Parliament does not extinguish incidents of the fee simple by procedural silence or by general conveyancing machinery provisions. If Parliament intended to extinguish the common law right of transfer entirely and make the statutory registration process the only legally operative mechanism of transfer, it would need to say so in terms that are unambiguous, express, and unmistakeable.
No Australian conveyancing Act uses such terms. They regulate the statutory process. They do not extinguish the common law right.
The related principle from Clissold v Perry (1904) 1 CLR 363, where Griffith CJ held that statutes are not to be construed as interfering with vested interests unless that intention is manifest, applies with equal force. The right to transfer by deed is a vested incident of the fee simple. Its displacement requires manifest intention, not implication.
What section 7(2)(c) of the Acts Interpretation Act 1901 (Cth) and section 16 of the Interpretation Act 1984 (WA) confirm
Section 7(2)(c) of the Acts Interpretation Act 1901 (Cth) provides that where an Act repeals or amends another Act, the repeal or amendment does not affect any right, privilege, obligation or liability acquired, accrued or incurred under the affected Act or part. This is the Commonwealth-level preservation of accrued rights. It applies to Commonwealth Acts.
Section 16 of the Interpretation Act 1984 (WA) provides the equivalent preservation for WA State Acts. Section 16(1)(c) preserves rights and privileges acquired under a prior enactment against displacement by later WA legislation. This is the operative provision for WA instruments including the Local Government Act 1995 (WA) and the WA conveyancing Acts. Each State has similar provisions, usually in the Interpretation Acts.
The principle expressed in both instruments is the same, and it is not merely a statutory rule – it reflects the common law position that an accrued right, once vested, is not displaced by subsequent legislation without clear and unambiguous words. The right to transfer by deed accrued as an incident of the fee simple at the moment of the Crown grant. No subsequent Act – whether the Torrens Acts, the conveyancing Acts, or the licensed conveyancer legislation – has used the clear and unambiguous words required to displace it. Section 7(2)(c) at Commonwealth level and section 16 of the Interpretation Act 1984 (WA) at State level confirm that it survives.
What section 51(xxxi) of the Constitution requires
If a statute purports not merely to regulate the recording of a transfer within the statutory system, but to extinguish the common law right to transfer without going through the statutory registration process – effectively making the statutory system the sole legally operative mechanism and eliminating the common law right entirely – it is in substance acquiring a property right: the right to deal freely with one’s own property at common law.
That acquisition, if it occurs, must be on just terms under section 51(xxxi) of the Commonwealth of Australia Constitution Act 1900 (UK). No Australian conveyancing Act pays just terms for the compulsory acquisition of the right to transfer at common law. None acknowledges the acquisition. That is a further constitutional defect in any reading of a conveyancing Act that extends its reach beyond the statutory registration system into the underlying common law right.
The two things that exist simultaneously
A man or woman who holds land under the Torrens system holds two things simultaneously. They hold a registered title – a creature of the statutory system, carrying indefeasibility and the statutory consequences of registration. And they hold a fee simple derived from the Crown grant – a creature of the common law, carrying all the incidents of that estate including the right to transfer by deed.
These are not the same thing. They coexist. The statutory system governs the first. The common law governs the second. Obligations that attach to the registered proprietor status do not derive from the fee simple. Rights that attach to the fee simple do not derive from the registered proprietor status. The right to transfer by deed at common law attaches to the fee simple, not to the registered proprietor status. It is prior to the statutory system. It has not been extinguished. It survives.
What this means in practice
A man or woman who transfers land by common law deed effects a legally operative transfer of the common law estate at the moment of delivery. That is not a transaction the statutory system created. It is not a transaction the statutory system can declare void by procedural default without clear statutory words and just terms.
What the man or woman does not acquire by that transaction alone – without registration – is the indefeasibility of the Torrens registered title. That is a statutory benefit that registration brings. The absence of indefeasibility does not mean the absence of title. It means the title is vulnerable to certain claims that a registered title would defeat. That is a practical consideration, not a legal extinguishment of the right of transfer itself.
A man or woman dealing with land outside the statutory registration system takes on practical risks that registration would eliminate. That is a matter of practical judgment. The legal question – whether the common law right to transfer by deed survives the conveyancing Acts – is answered in the affirmative by the authorities examined in this article, the principle of legality, section 7(2)(c) and its WA (and other State’s) equivalent, and the constitutional just terms requirement.
The honest position
No Australian court has accepted the proposition that a man or woman can simply ignore the Torrens registration system and deal with land entirely at common law without any practical consequences. Courts have consistently treated the Torrens system as the operative framework for most practical land dealings. Attempts to deal outside the system create significant practical difficulties, particularly in relation to third parties, mortgagees, and subsequent registered holders who take free of unregistered interests.
None of that is in dispute here. The practical dominance of the Torrens system is acknowledged. What is disputed is the legal claim that the Torrens system and the conveyancing Acts extinguished the common law right to transfer by deed – that the statutory system is the only legally operative mechanism and the common law right simply no longer exists.
That claim is wrong. The common law right has not been extinguished. It has been practically marginalised. The two are not the same thing. A right that is practically marginalised remains a right. It can be asserted. It can be placed on the record. And it travels with the man or woman who holds the estate, whether or not the statutory system acknowledges it.
Nemo potest plus juris ad alium transferre quam ipse habet. No one can transfer to another more right than he himself has. The statutory system received nothing from the Crown grant that allowed it to extinguish the right of transfer that the grant carried. The right is still there.
This article is provided for public information and does not constitute legal advice. Men and women who wish to rely on the principles described here in specific legal proceedings should seek independent legal advice appropriate to their circumstances.
Last Updated 2 months ago
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