Conveyancers, Convicts and Criminals: Dark Deeds Indeed

CONVEYANCERS have been part of Australia’s legal landscape from almost the beginning of the colony.

Arguably the first act of conveyancing in Australia came on April 29 1770, when James Cook conveyed a Union Jack from HMS Endeavour and planted it at Botany Bay.

His landing was challenged by two men from the local Gweagal clan, one of whom was shot.

“I thought that they beckon’d to us to come ashore,” Captain Cook wrote in his journal. He was sorely mistaken but so began our contentious system of land ownership.

Britain moved swiftly to formalise its claim. The second appointment to public office in NSW, after Governor Arthur Phillip, was Surveyor General Augustus Theodore Alt.

Alt arrived with the First Fleet in 1788 and was instructed to “make survey of, and mark out, lots upon the said territory…” 

By 1800, land dealings were in full swing, with grants and deeds of property and the civil court adjudicating on disputes.

Much of the early conveyancing was done by convict attorneys who as “stained men” were barred from appearing at the bench.

They hung out their shingles regardless, in breach of The Stamp Act 44 Geo III c98 s14, which restricted the practise of conveyancing to “members of the Inn of Court,” and provided punishment for “any non-professional person who drew a deed of conveyance … in expectation of reward”.

At one point, convicts who operated illegally as conveyancers were liable “to be worked in irons on the public roads or other public works … for any period not exceeding one year”.

Attorneys fought to maintain their hold on the practice but, by the mid-1800s, demand and costs were such that the legislature created a regulatory scheme for conveyancing.

It characterised the work that new Certified Conveyancers could perform, how they were examined, and made them subject to the jurisdiction of the court.

Conveyancers became an important subgroup of the legal profession, employed as specialists in the Crown Solicitor’s Office, the Registrar General’s Department, the Rural Bank, the Public Trustee’s Office, the Department of Public Works and the Department of Transport.

They even assisted the Master of Lunacy – an official who dealt with estates for those deemed incapable of managing their own affairs.

Exams were said to be very difficult. Candidates were required to demonstrate legal knowledge, their experience of conveyancing, and that they were a fit and proper person to be enrolled by the court.

Barrister W. J. McKell (later Governor General Sir William) stated “their characters are beyond reproach” and “they are honoured in the legal profession”.

But not by all in the legal profession. At the height of the Great Depression, Kerrigan’s Case saw pitched battle between The Law Institute and Institute of Conveyancers over the legal work permitted to a conveyancer.

The conveyancers won but, in the same year, the 1935 Legal Practitioners (Amendment) Bill was introduced in the NSW Parliament, calling for no more granting of conveyancers’ certificates.

Opposition leader Jack Lang accused solicitors of seeking a monopoly, saying “some of the finest men I have met have been conveyancers and this Bill will wipe them out. I do not like the Bill”.

But it passed on March 11 193 and, in 1967, a further amendment provided that the last remaining conveyancers were to be enrolled as solicitors.

It appeared that the conveyancer’s profession, a brook of legal practitioner, had run into the sea and been completely absorbed by the solicitor practitioner. Or had they?

Two decades later, public disquiet at solicitors’ conveyancing costs brought a NSW government review and eventually the Conveyancers Licensing Act 1992 and subsequent 1995 and current 2003 Acts.

The occupation of conveyancer as a class of legal service provider had been restored.

This article focuses on NSW history. Specialist conveyancers in other jurisdictions have different “scope of works.” In Western Australia they are known as Settlement Agents, and conveyancers are currently not permitted to operate in Queensland or the Australian Capital Territory.