Shaw, J.W. --- "Torrens Title: Karl Man and Australian land titles" [2003] AltLawJl 59; (2003) 28(4) Alternative Law Journal 196

• TORRENS TITLE
• Karl Marx and Australian land titles
• What is Torrens Title?

TORRENS TITLE
Karl Marx and Australian land titles

J.W. SHAW^[*] reports on a little known connection between Australia and 'Das Kapital'.

My old political science lecturer (a subject which we unpretentiously called 'Government' at the University of Sydney), Professor Henry Mayer, was a fine researcher of the minutiae of politics and history. In his impressive book, Marx, Engels and Australia^[1] he deals extensively with references by Karl Marx and Fredrick Engels to Australia. It shows an impressive access on the part of these revolutionary writers to what must have seemed a distant and obscure polity in an era when international communication was very different from the time of the aeroplane, facsimile, and the internet. However, it seems to me that Professor Mayer did not quite hit onto the point of interest of Karl Marx in the Australian law ofland titles. He does note, in relation to Marx's sources on Australia, Marxs' access to the work of C Gavan-Duffy, Guide to the Land Law of Victoria (I862) in Capital: Volume 1^[2] in Appendix I of the book (p.142).

But there is insufficient explicit recognition of Marx's knowledge of the Torren's Title system developed in South Australia. This note seeks to rectify that omission.

What is Torrens Title?

Torrens Title it is a system of land ownership, to which most Australian residential properties are subject, whereby the State guarantees the title to be a good root of title. In contrast to the traditional system of conveyancing the title is 'indefeasable' on registration. It also saved the parties expensive conveyancing fees.^[3] Justice Young, now the Chief Judge of Equity in NSW, said in McCamley v Harris (Unreported, NSWSC, 2 September 1997):

The legislative scheme in the Torrens Act was perhaps rather ill thought out, but essentially it is that no one can be defeated by some forgery or other matter including notice of an equitable interest, but that each time there is a dealing with the land, the government guarantees the title and the title is indefeasible.

An appeal against that judgment was dismissed by the Court of Appeal in Registrar General v Harris (Unreported, 22 October 1998).

The credit for this innovation in land titles is generally given to Sir Robert Torrens (1814--1884), born in Ireland but emigrating to become a South Australian public servant and politician.^[4] Torrens seems to have been a controversial and colourful character marked by what his ADB biographer characterised as 'a pattern of unorthodoxy in his office'. In 1857, when standing for election to the South Australian House of Assembly, he was espousing land title reform, became Premier and then pursued legislative change against opposition from the legal profession. As his biographer says, a central notion of the new system of land title was that innocent dealers with interests in registered land were guaranteed either their interest in the land or monetary compensation. Torrens resigned from the Parliament in 1858 and became Registrar General under the Real Property Act (SA) and played a role in the practical implementation of the scheme he had promoted in the legislature.

Somehow Karl Marx, writing in the London Museum, became aware of this antipodean phenomenon. In Capital: A Critique of Political Economy, Volume I: The Process of Production of Capital the author said:^[5]

As soon as Australia became her own law-giver, she passed, of course, laws favourable to the settlers, but the squandering of the land, already accomplished by the English Government, stands in the way. 'The first and main object of which the new Land Act of 1862 aims is to give increased facilities for the settlement of the people' ('The Land Law of Victoria,' by the Hon C.G. Duffy, Minister of Public Lands, Lond, 1862.)

That Duffy was an ancestor of Sydney polemicist, economist, one time Labor party political staffer, and writer of pop songs, Mark Duffy, who drew this footnote to my attention.

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^[*] The Hon J.W. Shaw is a judge of the Supreme Court of NSW.

©2003 J.W. Shaw

^[1] F W Cheshire, Sydney Studies in Politics (1964) 5.

^[2] Karl Marx, Capital: A Critique of Political Economy (1906-9) 883.

^[3] See Redfern Legal Centre Publishing The Law Handbook (7th ed 1999) 777.

^[4] See Douglas J Whalan, 'Sir Robert Richard Torrens' in Australian Dictionary of Biography Vol 6 (I976).

^[5] F Engels (ed), (trans by S Moore and E Aveling 1986) 724 in a footnote.