Anglican Church of Australia (Diocesan Trustees) Act 1888

The Act is structured around a small number of interlocking legal concepts: statutory incorporation and succession; trust vesting and variation; bespoke trust accounting priorities for Cathedral Square; a supervisory and directing committee (the Foundation); permitted fee-taking by trustees with a market comparator; and an administrative mechanism to incorporate missions and institutions with asset and liability vesting and fiscal exemptions.

Statutory incorporation and succession. Section 2 names the inaugural trustees and creates The Perth Diocesan Trustees as a corporation with perpetual succession and capacity to litigate (s 2). Section 3 effects an immediate legal succession by vesting the Standing Committee’s prior property in the new corporate body, subject to the same estates and liabilities (s 3). Section 4 carries over the pre-existing contractual liabilities and benefits to the new Trustees by deeming them to be parties to the Standing Committee’s arrangements (s 4).

Trusts, priority and variation for Cathedral Square. Section 3A is a statutory override provision: it applies notwithstanding any other provision of this Act, any other Act, or any prior trust on Cathedral Square land and, to the necessary extent, varies that trust (s 3A(1)-(2)). It imposes a specific application order for Cathedral Square receipts after deduction of permitted fees: first rates/taxes, maintenance/repairs/insurance, interest on mortgages, mortgage principal reductions as decided by Trustees, agreed annual sinking fund contributions, and Deanery provision; then the balance is distributable towards Cathedral, Diocesan and Provincial needs as determined by the Cathedral Square Foundation (s 3A(3)). Section 3A(4) treats distributions to a parish or the Cathedral Chapter under subsection (3)(b) as not being subject to assessment by any Synod as income of the recipient parish or Chapter.

Governance overlay: the Cathedral Square Foundation. Section 3B establishes the Foundation, prescribes membership, deputies, term lengths and reappointment, quorum and voting rules including the Archbishop’s deliberative and casting vote, and sets out the Foundation’s functions and duties, notably the binding power to determine distributions from Cathedral Square to be made by the Trustees (s 3B(1)-(11)). The Foundation’s advice regarding maintenance and development is non‑binding, but its directions on distributions are binding on the Trustees (s 3B(11)).

Fee regime for Trustees. Section 3BA authorises the Trustees to charge fees and commissions against capital of trusts created after the section’s commencement and against the income of trusts created before or after that date (s 3BA(1)). Subsection (2) imposes a statutory cap by tying allowable fees to those lawfully chargeable by Trustee Companies under their own statutes, or if Trustee Company fees differ, to the average thereof (s 3BA(2)). Subsection (4) identifies the Trustee Company Acts by name for the purpose of that comparator (s 3BA(4)). The section validates past acts consistent with what it permits (s 3BA(3)).

Mission and institution incorporation. Section 5A gives the Synod of the Diocese of Perth power to resolve that a mission or institution be separately incorporated and prescribes the automatic vesting of property and contractual rights in the newly incorporated corporate entity, and automatic transfer of debts, liabilities and obligations to it (s 5A(1)-(3)). The mission or institution remains a mission/institution of the Church despite separate incorporation (s 5A(4)). Transfers necessary for vesting are declared free from duties under the Duties Act 2008 and certain Transfer of Land Act fees (s 5A(5)). For incorporated schools and colleges, exemptions from local government rates, statutory water service charges in defined circumstances, and land tax are provided (s 5A(6)). All vested property remains subject to antecedent trusts and Synod statutes, where consistent with State law (s 5A(7)).

Interaction with Synod authority and State executive. Trustees’ powers and investments are exercisable only for the purposes of the Anglican Church within the State and subject to existing trusts and to Statutes, orders, directions and regulations of Synod (s 2). A special proviso requires Governor consent before sale, transfer or mortgage of land given by the Crown without pecuniary consideration (s 2 proviso). Thus the Act creates a limited private trust autonomy for Church purposes while maintaining legal subordination to Synod direction and, in the Crown land case, to the executive.

Definitions and situs. Section 3C supplies statutory definitions for terms used in the Cathedral Square provisions and elsewhere, fixing the meaning of Cathedral Square to the parcels in the Schedule and identifying the institutional actors (Archbishop, Dean, Cathedral Chapter, Diocese, Diocesan Council, Foundation, Province and Trustees).

These concepts interact to create a governance architecture where statutory duties and priorities for a defined asset class (Cathedral Square) are enforced through a mixed governance structure: a legally empowered trustee corporation bound by Synod statutes and by binding directions from a small statutory Foundation, while also able to charge market‑referenced trustee fees and to facilitate corporate structuring of missions and institutions with associated fiscal relief.

The Act creates legal effects on a defined set of corporate and natural persons. The principal affected parties are:

• The Perth Diocesan Trustees. The Act’s primary addressee is the corporate trustee created by s 2. The Trustees gain legal capacity to hold, acquire, invest, mortgage and dispose of property for Church purposes within the State (s 2), are made liable for existing contracts of the Standing Committee (s 4), and are bound by the priority regime and directions governing Cathedral Square receipts (s 3A, s 3B).

• The Cathedral Chapter, Cathedral and Dean. Cathedral Square income is to be applied in part to the Cathedral and its requirements, including the Deanery (s 3A(2)-(3)(a)(vi) and (b)). The Cathedral Chapter is entitled to receive distributions from Cathedral Square under the Foundation’s determinations and those distributions have a specific non‑assessment treatment under s 3A(4). The Cathedral Chapter participates in the Foundation by appointing two lay members and deputies (s 3B(2)(c), (3)).

• The Archbishop and Dean as individual office‑holders. The Archbishop (or his commissary) and the Dean are ex officio members of the Foundation (s 3B(2)(a)-(b)) and exercise a deliberative and, in the Archbishop’s case, a casting vote at Foundation meetings (s 3B(8)(c)).

• Lay representatives. Four lay persons are statutory members of the Foundation, two appointed by the Cathedral Chapter and two by the Diocesan Council, each with deputies and limited terms (s 3B(2)-(6)). These lay members participate in binding decisions about Cathedral Square distributions (s 3B(11)(b)).

• The Diocesan Council and Synod. The Diocesan Council appoints two lay members to the Foundation (s 3B(2)(c)). More broadly, the Trustees’ powers are exercisable subject to Statutes, orders, directions and regulations of Synod, so the Synod’s statutory instruments constrain Trustees (s 2; s 5A(7)). The Synod also controls whether missions or institutions may be separately incorporated by resolution (s 5A(1)).

• Parishes and missions/institutions. Parishes can be recipients of Cathedral Square distributions under s 3A(3)(b). Section 5A enables missions and institutions of the Diocese to be separately incorporated, with automatic vesting of property and assignment of liabilities and obligations to the newly constituted corporate entity (s 5A(1)-(3)). When incorporated, such bodies remain missions or institutions of the Church (s 5A(4)), and for schools and colleges certain land‑related imposts are excluded (s 5A(6)).

• The Governor and Crown land interests. The Trustees cannot dispose of Crown grants given to the Church without pecuniary consideration unless the Governor consents (s 2 proviso). That places a role on the executive for land originally granted by the Crown gratuitously.

• Local and State revenue authorities and statutory administrators. The Act interacts directly with rating, water service charging and land tax regimes for incorporated schools and colleges (s 5A(6)), and with duties and Transfer of Land Act fees in respect of the vesting instruments used to effect incorporation (s 5A(5)). Treasury and revenue officers will be affected by the statutory exemptions and required to follow the Act.

• Trustee Company comparator bodies and their regulatory successors. Section 3BA caps trustee fees by reference to the fees lawfully chargeable by specified Trustee Companies under their own legislation (s 3BA(2)-(4)). The notes to the reprint indicate that those named Trustee Company Acts were later repealed and replaced by the Trustee Companies Act 1987, so contemporary fee comparisons may involve successor regulatory regimes. The Act therefore affects whoever is relied on as the comparator for allowable Trustee fees.

• Third‑party contracting counterparties and mortgagees. Because the Trustees can mortgage Cathedral Square land and other assets to borrow for building and improvement purposes (s 2), and because the Trustees inherit contractual liabilities from the Standing Committee (s 4), creditors and contracting parties are directly affected by the Trustees’ capacity to bind and be bound.

• Beneficiaries and creditors related to particular trusts. The Act varies underlying trusts for Cathedral Square to the extent necessary to implement s 3A(1), potentially affecting former beneficiaries’ expectations; it also validates certain prior acts under the Cathedral Square and fee provisions (s 3A(5), s 3BA(3)).

In short, the Act affects institutional church actors at diocesan and chapter level, lay governance participants, diocesan missions and institutions (particularly schools and colleges), government revenue and local rate authorities, and the third‑party commercial counterparties who transact with the Trustees. Who pays and who decides flows from these roles: the Trustees administer and expend funds, the Foundation directs distributions for Cathedral Square and Synod statutes constrain Trustees, and the Governor can block disposal of Crown‑donated land without consent.

The Act assigns specific powers, priorities, duties and limitations to the Trustees and the Cathedral Square Foundation and sets directions for incorporation of missions. The rights and duties are both operational and fiduciary in character. Below are the principal duties and rights set out in the statute with section references.

Rights and capacities of the Trustees

• Corporate capacity: The Trustees have perpetual succession, a common seal and capacity to sue and be sued (s 2).

• Property rights: The Trustees have the power to acquire and hold by purchase, devise or otherwise, all real and personal estate and to convey, assign, demise or otherwise dispose of such property (s 2).

• Borrowing and security: They may borrow on mortgage for purposes such as erecting, improving or aiding in erecting or improving churches, parsonages and other buildings, improving freehold property, or redeeming existing securities; they may mortgage land under the corporate seal to secure repayment (s 2).

• Investment and employment of property: They may take, hold, employ and invest real and personal estate they deem advisable, subject to authorisation by Statutes of Synod (s 2).

• Contractual continuity: The Trustees are liable on and entitled to the benefit of all contracts and engagements formerly entered into by the Standing Committee as if the Trustees had been original parties (s 4). Section 5 complements this by treating the words “Standing Committee” in another Act as references to The Perth Diocesan Trustees (s 5).

Duties and constraints upon the Trustees

• Purpose restriction: Powers to hold and invest property are limited to the purposes of the Anglican Church of Australia so far as it is in the State and remain subject to any trusts affecting the property and to Statutes, orders, directions and regulations of Synod (s 2).

• Crown land constraint: No land given by the Crown gratuitously to or for the benefit of the Church shall be conveyed, transferred, mortgaged, sold or otherwise disposed of without the Governor’s consent (s 2 proviso).

• Cathedral Square accounting and application duties: For Cathedral Square, the Trustees must apply rents, profits, mortgage proceeds and capital proceeds in the specific order set out in s 3A(3) after deducting fees and commissions chargeable under s 3BA. That list includes payment of rates and taxes, maintenance, insurance, interest and such principal payments and sinking fund contributions as decided or agreed, Deanery costs, and only then distributions for Cathedral, Diocese and Province according to Foundation determinations (s 3A(3)).

• Fee‑taking limited by comparators: The Trustees may charge fees and commissions against trust capital and income but only up to the limit of fees lawfully chargeable by Trustee Companies or the average of differing Trustee Company fees (s 3BA(1)-(2)). They must therefore monitor trustee company fee levels to ensure statutory compliance.

• Binding directions from Foundation on distributions: Determinations and directions of the Cathedral Square Foundation under s 3A(3)(b) are binding on the Trustees (s 3B(11)(b)). By contrast, the Foundation’s advice on maintenance and development is non‑binding (s 3B(11)(a), (c)).

• Statutory validation and continuity duties: The Act contains validation clauses that save prior acts taken before the insertion of the Cathedral Square and fees provisions if those acts would have been lawful if the provisions had already been in force (s 3A(5), s 3BA(3)). Trustees therefore inherit and must account for historical dealings and arrears in accordance with the Act.

Duties and powers of the Cathedral Square Foundation

• Composition, quorum and voting: The Foundation comprises the Archbishop (or commissary), the Dean, and four lay members with deputies, a three‑year appointment term and re‑appointment eligibility (s 3B(1)-(6), (8)). A quorum is five members including deputies as necessary and decisions are by majority, with the Archbishop having deliberative and casting votes (s 3B(8)(a)-(c)).

• Functions and duties: The Foundation must give advice to the Trustees on the matters listed in s 3A(3)(a) (maintenance, insurance, mortgages etc), to make determinations about distributions from Cathedral Square (binding on the Trustees), make recommendations about Cathedral Square development (non‑binding), and report half‑yearly to Cathedral Chapter and Diocesan Council (s 3B(11)(a)-(d)).

Missions and institutions pathway

• Synod empowerment and vesting: Where the Synod resolves to incorporate a mission or institution, property and contractual rights that were used exclusively by the mission immediately before incorporation vest automatically in the new corporate entity, subject to easements and encumbrances (s 5A(1)-(2)(a)). Debts and liabilities related to the mission transfer automatically to the new corporate body without separate transfer and the new body indemnifies the Trustees and prior liable persons (s 5A(2)(b)).

• Fiscal and regulatory exemptions: Instruments necessary to effect vesting are made free from duty under the Duties Act 2008 and certain Transfer of Land Act fees (s 5A(5)). For incorporated schools and colleges, certain land is made non‑rateable, exempt from statutory water charges in specific circumstances and exempt from land tax (s 5A(6)).

Other duties and rights

• Validation of prior acts: Both the Cathedral Square and fees sections validate past acts that would have been lawful had the provisions been in force at the time (s 3A(5), s 3BA(3)). This places a duty on Trustees to align past dealing records with the statutory positions.

• Subordination to law: Section 5A(7) expressly subjects property held by or in trust for incorporated missions to existing trusts and Synod statutes to the extent they do not contravene State law, signalling a duty on incorporated missions to observe both ecclesiastical and civil constraints.

Taken together, the Act creates a set of operational rights for the Trustees to manage Church property and borrow against it, while imposing statutory priorities and external constraints in the specific context of Cathedral Square and in the incorporation pathway for missions and institutions. The Trustees therefore hold both discretionary powers and legally imposed duties that restrict the exercise of those powers in particular contexts.

The Act does not create novel criminal penalties or a bespoke enforcement agency. Its enforcement architecture relies on ordinary civil and trust remedies, statutory binding directions, and the general capacity of parties to use courts to enforce rights. The following are the enforcement features and practical enforcement implications that flow from the statute.

Civil enforcement and contractual remedies

• Capacity to sue and be sued: The Trustees are expressly given capacity to litigate and be subject to suit (s 2). That enables third parties, beneficiaries, creditors and other stakeholders to enforce contractual obligations, mortgages and trust duties through ordinary civil proceedings.

• Contracts and continuity of obligations: Section 4 makes The Perth Diocesan Trustees liable upon and entitled to the benefit of all contracts previously entered into by the Standing Committee, and treats the Trustees as if they had been original parties. That preserves pre‑existing contractual remedies and provides clarity about who can be sued or who has enforcement rights under antecedent agreements (s 4).

Trust obligations and binding directions

• Binding directions from the Foundation: The Act creates a statutory mechanism for the Foundation to issue determinations and directions concerning distributions from Cathedral Square which are binding on the Trustees (s 3B(11)(b)). Enforcement of such directions will be through civil remedies available to enforce statutory duties, including applications to courts for declaratory relief or injunctive relief should the Trustees not comply.

• Trust priority order: Section 3A prescribes the order in which Cathedral Square income must be applied and this statutory prioritisation can be enforced by beneficiaries and stakeholders having an interest in the funds. A beneficiary or creditor might seek court orders to enforce that statutory priority in the event of misapplication.

No penal sanctions in the statute

• Absence of offences: The Act contains no express penal sanctions, fines or criminal offences. There is no provision imposing criminal penalties for breach of trustees’ duties within this statute. Enforcement therefore falls to civil law mechanisms and to ecclesiastical discipline or Synod processes where those exist outside the Act.

Validation and retrospective comfort

• Validation clauses: Sections 3A(5) and 3BA(3) validate acts done before those sections came into operation if those acts would have been lawful had the sections then been in force. The validation language reduces the risk of retrospective enforcement exposure for historical acts of the Trustees or related actors that were consistent with the post‑enactment provisions but were undertaken before their insertion. Validation may be relied on defensively in litigation to resist claims of invalidity for past transactions validated by the statute.

Interplay with other enforcement regimes

• Revenue and rating authorities: The Act creates statutory exemptions from duties, transfer fees and some land‑related imposts for separately incorporated missions or institutions, and for certain schools and colleges (s 5A(5)-(6)). Revenue authorities will therefore be involved in enforcement of tax and rating law, and may be constrained from levying specific imposts where the Act applies. Disputes about eligibility for exemptions would be resolved under existing administrative and judicial review processes.

Practical enforcement risks and remedies

• Remedies for beneficiaries and creditors will be the ordinary suite of equitable and common law reliefs: declarations, injunctions, accounts and equitable compensation. Because the Trustees are expressly liable for prior contractual obligations (s 4), creditors likely have straightforward standing to sue for breach of contract or to enforce security.

• The Act’s emphasis on statutoryly binding directions and prioritised fund application means that courts are likely to enforce the Act’s mechanics as part of trust law remedies. Any litigation would arise through civil proceedings brought by affected beneficiaries, contracting parties, or public revenue authorities challenging or defending entitlement to exemptions.

In summary, enforcement under the Act is civil and trust‑law based, with the statutory text supplying binding duties (for example the Foundation’s directions and the Cathedral Square application order) that can be enforced in court. The Act contains no criminal penalties. The Trustees’ statutory capacity to be sued (s 2) and their deemed succession to Standing Committee contracts (s 4) put compliance and litigation exposure squarely within the ordinary civil court system.

The Act makes specific cross‑references and creates substantive interactions with multiple other statutory regimes. These interactions are explicit in several provisions and in the compilation notes.

Taxation, duties and transfer law

• Duties and transfer exemptions on incorporation: Section 5A(5) provides that all instruments necessary to effect vesting of property in a separately incorporated mission or institution are free from duty imposed by the Duties Act 2008 and free from fees payable under the Transfer of Land Act 1893 that would otherwise be payable. That creates a statutory exemption from duties and transfer fees for transfers effected under s 5A.

• Repealed trustee company statutes and fee comparator: Section 3BA(4) defines “Trustee Companies” by reference to the Perpetual Trustees W.A. Ltd. Act 1922 and the West Australian Trustees Limited Act 1893. The compilation notes state those Acts were repealed by the Trustee Companies Act 1987. Consequently the statutory fee‑cap mechanism in s 3BA interacts with a broader regulatory history of trustee company regulation and may require reference to successor legislation and market practice for contemporary application.

Local government, water services and land tax regimes

• Exemptions for schools and colleges: Section 5A(6) provides that when an institution is separately incorporated and is a school or college, vacant land held by the institution and land used exclusively or mainly for school/college purposes is not rateable land under the Local Government Act 1995, is not subject to statutory water service charges under the Water Services Act 2012 unless connected to water service works as defined in that Act, and is exempt from land tax under the Land Tax Act 2002. Those are specific statutory carve‑outs linking the Act to local government rating rules, the water services charging regime, and the Land Tax Act.

Synod and ecclesiastical law

• Subjection to Synod statutes: The Trustees’ exercise of powers is explicitly subject to the Statutes, orders, directions and regulations of Synod (s 2). Section 5A(7) further provides that property of incorporated missions remains subject to the performance of any trusts relating thereto and to Synod statutes to the extent they do not contravene State law. The Act therefore sits alongside ecclesiastical law and gives primacy to civil law where inconsistency arises.

Crown land and executive consent

• Governor consent on Crown grants: The proviso to s 2 requires the Governor’s consent before disposal of Crown land gifted to the Church without consideration. That creates a point of interaction with executive functions and Crown land policy.

Trust and equity law and courts

• Continuity of contracts: Sections 3 and 4 ensure that existing trusts, covenants and contracts remain effective and that the Trustees can be sued and can enforce rights as the Standing Committee’s legal successors (s 3, s 4). That integrates the Act’s statutory changes into the wider corpus of trust and contract law.

Statutory definitions and reprints

• Constructional adjustments: The compilation notes explain that under later Acts the phrase “Church of England” is to be read as “Anglican Church of Australia” (notes to the reprint), an interpretive substitution that affects how earlier references in State law are to be read. The Acts listed in the compilation table show later amendments across many years, including the insertion of Cathedral Square provisions (1973), the Trustee fee provisions (1975), and mission incorporation (1969), so that the Act must be read in light of those amendments and later repeals of referenced comparator Acts.

Practical interoperability issues

• Contemporary fee comparator: Because s 3BA caps Trustee fees by reference to Trustee Companies under historical Acts that have been repealed and replaced, applying the statutory cap may require reading s 3BA against successor trustee company regulation and market practice, and possibly interpreting “fees lawfully chargeable” in the light of current regulation and case law if contested.

• Revenue administration: The statutory exemptions in s 5A(5) and (6) will require revenue, land title and local government authorities to interpret eligibility for relief under this Act in accordance with the factual circumstances of any vesting, especially whether land is used exclusively or mainly for school purposes and whether lands are connected to water service works.

• Trust variation and statutory override: Section 3A is expressed to apply notwithstanding other Acts or prior trusts and to vary those trusts to the necessary extent. That creates a statutory trump in the specific Cathedral Square context which may reduce scope for those asserting contrary trust terms to prevail. It also creates potential tension points with other trust beneficiaries if competing claims arise.

In sum, the Act deliberately situates its provisions within the landscape of State revenue, property and municipal law, while preserving the primacy of civil law over ecclesiastical statutes where inconsistency arises. Practitioners must cross‑check duties, transfer fees and rating law when advising on incorporations, vestings and disposals, and they must pay attention to the historical reference points the Act uses for fee comparison and to the Governor’s role with respect to Crown gifts.

The Act as reprinted at 8 May 2015 is the product of many amendments since its original enactment in 1888. The reprint’s compilation table and the Act text annotate when provisions were added or altered. The key amendment landmarks, using the compilation table and in‑text insertion notes, are as follows.

• Original enactment (1888). The Act began life in 1888 as the Act incorporating diocesan trustees. The compilation table records assent on 21 November 1888.

• 1918: Church of England Diocesan Trustees and Lands Act 1918 (34 of 1918). This amending Act changed earlier references and altered the corporate name to “The Perth Diocesan Trustees” as evidenced by the notes to s 2 and the compilation table entry for 1918.

• 1960: Church of England in Australia Constitution Act 1960 (4 of 1960). This Act changed references to “Church of England” so as to be construed as “Church of England in Australia so far as it is in the State”, effecting constitutional adjustments for the church’s national structure. The compilation table notes its commencement provisions and the reprint indicates that references in the 1888 Act were adapted accordingly.

• 1966: Statute Law Revision (Short Titles) Act 1966 (81 of 1966). Section 2 inserted the short title and brought some editorial uniformity.

• 1969: Church of England (Diocesan Trustees) Act Amendment Act 1969 (66 of 1969). The compilation table records this amendment with assent on 14 October 1969 and indicates it inserted s 5A, the provision allowing the Synod to resolve to incorporate missions and institutions and prescribing the vesting and indemnity rules, among other effects. The in‑text note confirms s 5A was inserted by the 1969 Act.

• 1973: Church of England (Diocesan Trustees) Act Amendment Act 1973 (55 of 1973). This Act inserted s 3A, s 3B and s 3C, the suite of provisions governing Cathedral Square, the Cathedral Square Foundation and defined terms. The compilation table shows the insertion date of 19 November 1973, and the in‑text annotations confirm s 3A, s 3B and s 3C were inserted by the 1973 Act.

• 1975: Church of England (Diocesan Trustees) Act Amendment Act 1975 (101 of 1975). This Act inserted s 3BA, permitting Trustees to charge fees and commissions with a statutory cap referencing Trustee Companies. The in‑text note records s 3BA was inserted in 1975.

• 1976: Anglican Church of Australia Act 1976 (121 of 1976). This Act effected nomenclature changes, aligning references from “Church of England” to “Anglican Church of Australia”, and the compilation table notes commencement in 1981 for parts of that Act. Several in‑text references note amendments by the 1976 Act.

• 1996: Local Government (Consequential Amendments) Act 1996 (14 of 1996). The compilation table records an amendment effective 1 July 1996. The precise textual change is not specified in the reprint text excerpt, but the table records its inclusion in the compilation.

• 2002: Taxation Administration (Consequential Provisions) Act 2002 (45 of 2002). Entry in the compilation table indicates an amendment commencing 1 July 2003. This likely updated cross‑references to taxation and revenue law, compatible with the inclusion in s 5A(5) of a reference to the Duties Act 2008 in later reprints.

• 2008: Duties Legislation Amendment Act 2008 (12 of 2008). The compilation table records commencement 1 July 2008 and s 5A(5) in the current text refers to the Duties Act 2008, reflecting that change.

• 2010: Standardisation of Formatting Act 2010 (19 of 2010). The compilation table notes this formatting amendment, which updated headings and presentation.

• 2012: Water Services Legislation Amendment and Repeal Act 2012 (25 of 2012). The compilation table records an amendment taking effect 18 November 2013; the Act’s s 5A(6) cross‑references the Water Services Act 2012, indicating an update to align with contemporary water services law.

The in‑text notes identify which sections were inserted by which amending Acts: s 3A and s 3C by the 1973 Act, s 3B by the 1973 Act, s 3BA by the 1975 Act, s 5A by the 1969 Act, and s 6 inserted by the 1966 Act and later amended. The compilation table collects later consequential amendments that updated cross‑references to taxation, duties, local government rating and water services regimes.

The reprint notes also record that the Trustee Company Acts mentioned in s 3BA(4) were themselves repealed by later legislation (the Trustee Companies Act 1987) and that certain references were editorially updated under the Reprints Act 1984. Practitioners should therefore read s 3BA against the current regulatory framework governing trustee companies and trustee fees.

Overall, the Act has evolved from an 1888 corporate incorporation instrument into a statute containing modernised trust accounting priorities, a statutory governance committee for a defined asset pool, a trustee fee cap referencing statutory comparators, and a mechanism to facilitate the corporate structuring of missions and institutions with specific fiscal exemptions.

The Act as reprinted does not contain any internal history of court decisions or reported litigation arising from its provisions, and the text of the Act and the compilation notes do not name any cases. There are no statutory schedules or marginal notes within this reprint that list judicial interpretations or appellate authorities applying the Act. The compilation table and Notes section document legislative amendments but do not record any litigation outcomes.

That absence has practical implications for legal advisers and litigants.

• No precedent recorded in the reprint: Because the reprint contains no reported cases that test the Act’s provisions, there is no statutoryly annotated litigation history within the text to consult. Practitioners must therefore look outside the statute to find any judicial treatment in court reports, tribunal decisions or unreported judgments.

• Likely areas for future litigation: The statutory issues most likely to generate disputes, and thus litigation, are (a) interpretation of s 3A where it purports to apply “notwithstanding” other Acts or existing trusts and to vary prior trusts to the necessary extent, (b) scope and application of the fee cap in s 3BA and how to identify the correct comparator Trustee Companies and their lawful fees in a modern regulatory context, (c) the correctness and scope of the s 5A exemptions from duties, transfer fees, rates, water charges and land tax for incorporated institutions, and (d) enforcement of binding directions of the Cathedral Square Foundation under s 3B(11)(b) where Trustees resist compliance. Each of these issues raises questions about statutory interpretation, property law, trust law and administrative law.

• Enforcement and remedy routes: In the absence of penal sanctions, compliance and contestation will take the form of civil proceedings in courts with jurisdiction over trusts, property, and contractual disputes. Where administrative decisions by revenue authorities are necessary (for example to accept or reject an exemption claim under s 5A(5)-(6)), disputes may reach administrative tribunals or courts.

• Ancillary sources of authority: Because the Act cross‑references and interacts with other statutes (Duties Act 2008, Transfer of Land Act 1893, Local Government Act 1995, Water Services Act 2012, Land Tax Act 2002) and because it uses historical comparator statutes for trustee fees that have been repealed, case law on those regimes and on successor regulatory statutes may be relevant to interpreting how the Act operates in practice.

• Need for case research beyond the reprint: Practitioners advising on contentious points therefore must conduct external case law research in State courts and possibly in Federal courts (for taxation or constitutional questions) to find any judicial treatment of these provisions. The reprint itself does not provide that litigation history.

In summary, there is no litigation history recorded in this reprint. Anticipated litigation themes include statutory overriding of trusts in s 3A, fee‑cap interpretation in s 3BA, eligibility for vesting and fiscal exemptions in s 5A, and the enforceability of Foundation directions under s 3B. Practitioners should search the court databases and reports for any decisions applying the Act or any of its amending statutes, and, where none exist, be prepared to argue questions of statutory construction and the interplay with trust and property law in the relevant jurisdiction.

The Act contains a number of textual and structural features that can trip up practitioners and stakeholders unless attended to carefully. The following are concrete, source‑grounded risks, ambiguities and practical traps derived from the Act’s provisions.

Statutory override and trust variation (s 3A)

• Section 3A(1) states the section applies “notwithstanding any other provision of this Act, any provision of any other Act, or any provision of a trust upon which any land in Cathedral Square may have been acquired or held before the coming into operation of this section”. That is broad language that, to the “necessary extent”, varies antecedent trusts. The practical consequence is that historical trust documents may be overridden by statutory priority rules for Cathedral Square receipts. Parties with beneficial interests under historic trusts may find statutory priorities have altered distributions in ways not contemplated by original trust instruments. Advisers must examine trust instruments for Cathedral Square land and consider the Act’s variation power when advising beneficiaries.

Binding directions from Foundation vs Trustee discretion (s 3B(11) & s 2)

• The Foundation’s determinations and directions concerning distributions to be made by the Trustees under s 3A(3)(b) are “binding on the Trustees” (s 3B(11)(b)). At the same time, Trustees retain general powers to invest and dispose of property subject to Synod statutes (s 2). The binding nature of Foundation directions can be a practical constraint on Trustees’ discretion and may create internal governance tensions, particularly where Trustees believe different investment or distribution strategies are warranted for fiduciary or prudential reasons.

Fee cap comparator ambiguity (s 3BA(2)-(4))

• Section 3BA caps fees by reference to the fees lawfully chargeable by specified Trustee Companies. The Act names the historic Perpetual Trustees W.A. Ltd. Act 1922 and the West Australian Trustees Limited Act 1893 (s 3BA(4)), but the compilation notes record that those Acts were repealed and replaced by the Trustee Companies Act 1987. This raises a comparative problem: how should “fees lawfully chargeable” be determined in a contemporary market where the named statutes no longer exist? Practitioners should not assume a straightforward numerical comparator exists; advice will require contemporaneous market research, regulatory review and potentially authoritative rulings on appropriate comparators.

Order of application of Cathedral Square receipts (s 3A(3))

• Section 3A(3) prescribes a strict order for applying Cathedral Square receipts after deduction of fees. That order prioritises property upkeep, mortgage interest, principal reductions as Trustees decide, agreed sinking fund contributions, and Deanery costs, before distributions for Cathedral, Diocese and Province. Practically, this means distributions may be limited for prolonged periods if upkeep, mortgage servicing or sinking fund commitments absorb receipts. Parish or chapter expectations about regular distributions must be reconciled with statutory priority, and agreements with the Cathedral Chapter about sinking funds or Deanery provision should be formalised to avoid disputes.

Validation of prior acts (s 3A(5), s 3BA(3))

• The Act validates prior acts done before the commencement of s 3A and s 3BA that would have been lawful had those sections been in force. While this provides legal cover for historical dealings, it also means that careful record keeping is needed to support that validation if challenged, including documentary evidence that past acts would have fitted within the statutory constructs.

Crown land disposal requires Governor consent (s 2 proviso)

• The proviso to s 2 forbids disposal of Crown gifts given without pecuniary consideration except with the Governor’s consent. Practitioners must identify whether any parcel of Church land was originally a gratuitous Crown grant; if so, proposed mortgages, sales or other dealings require executive consent. Failure to secure consent risks invalidity of disposition.

Automatic vesting and liability transfer on incorporation (s 5A(2))

• Section 5A(2) automatically vests property and transfers liabilities to a newly incorporated mission or institution “without any transfer or assignment” and requires the incorporated body to indemnify the Trustees and prior liable persons. This automaticity is efficient but can be a gotcha for creditors or stakeholders expecting a formal transfer and for Trustees who believed certain debts would remain with them. Documenting the scope of liabilities related to the mission before incorporation is critical.

Exemptions depend on use and connection (s 5A(6))

• The rating, water charge and land tax exemptions for incorporated schools and colleges depend on the land being vacant and used exclusively or mainly for school or college purposes and on water service connections as defined in the Water Services Act 2012 (s 5A(6)). Small deviations in land use, mixed uses, or a water connection could negate exemptions. Practitioners must assess factual use and connections carefully before assuming exemptions apply.

Interaction with Synod statutes (s 2, s 5A(7))

• Although the Act confers statutory powers, it repeatedly subjects those powers to Synod statutes, orders and regulations (s 2; s 5A(7)). That dual governance can create situations where ecclesiastical rules impose additional constraints or where Synod statutes conflict with civil law. Where Synod rules purport to do something inconsistent with State law, the Act emphasises that State law prevails, but the practical management of such conflicts may be operationally awkward.

Non‑assessment of distributions (s 3A(4))

• Distributions to a parish or the Cathedral Chapter pursuant to s 3A(3)(b) are declared not to be subject to assessment by any Synod as income of the parish or Chapter (s 3A(4)). That may have ecclesiastical accounting consequences and might require careful internal policy to allocate funds and to report to parishioners. It also raises questions about taxation or statutory reporting in other contexts, which require cross‑checking with taxation law.

Procedural compliance risks (s 3B(8))

• The Foundation’s quorum and voting rules require five members for a valid meeting and allow deputies to act. Failure to comply with appointment timing (first appointments within two months, s 3B(4)), term rules (three years, s 3B(5)), or quorum rules can invalidate determinations which are binding on the Trustees, exposing parties to litigation. Good governance systems for appointments and minutes are essential.

Summary of practical advice points

• Before disposing of or encumbering Church land, check whether the land was a gratuitous Crown grant and obtain Governor consent where necessary.

• For Cathedral Square receipts, document and follow the statutory priority order; formalise sinking fund agreements with Chapter; obtain Foundation directions where distributions are expected.

• When considering charging trustee fees, establish the contemporary comparator, document fee benchmarking, and ensure fees do not exceed the statutory cap.

• When incorporating missions or institutions, inventory assets and liabilities comprehensively, secure formal records of vesting events, and assess eligibility for the statutory exemptions by reference to usage and service connection facts.

• Maintain strict governance records for Foundation meetings, trustee appointments and Synod resolutions to ensure binding directions and appointments are valid.

These are concrete operational “gotchas” that arise directly from the statute’s text and structure and that should guide transactional and governance diligence.

Compliance under the Act requires attention to statutory priorities, governance procedures, record‑keeping, beneficiary communications and liaison with revenue and municipal authorities where exemptions are claimed. The following actionable checklist flows from the Act’s text and should guide trustees, Cathedral Chapter officers, Synod drafters and incorporations officers.

1. Confirm corporate and appointment records for The Perth Diocesan Trustees (s 2)

• Maintain up‑to‑date minute records and Statutes of Synod governing trustee appointment and succession as referenced in s 2. Ensure the corporate common seal is held and used under minute authority and register the corporate entity where required. Keep a register of successor trustees appointed pursuant to Synod statutes.

2. Verify property titles and identify Crown grants (s 3, s 2 proviso)

• Review title history for all diocesan properties to identify any lands originally granted by the Crown gratuitously. For any such parcel, secure written Governor consent before any proposed conveyance, transfer, mortgage or sale to avoid contravening the proviso to s 2.

3. Implement Cathedral Square accounting processes (s 3A(2)-(4))

• Create a dedicated accounting stream for all rents, issues and profits arising from Cathedral Square. Ensure accounts visibly segregate fees and commissions charged under s 3BA and apply receipts strictly in the order set out in s 3A(3): rates/taxes, maintenance/repair/insurance, mortgage interest, mortgage principal reductions as Trustees decide, agreed sinking fund contributions, Deanery costs, and only then distributions as directed by the Foundation.

• Record agreements with Cathedral Chapter about sinking fund amounts as described in s 3A(3)(a)(v). Produce half‑yearly reports consistent with the Foundation’s reporting duty (s 3B(11)(d)).

4. Operate the Cathedral Square Foundation consistent with s 3B

• Appoint the Archbishop or commissary, Dean, and the four lay members and their deputies in accordance with s 3B(2)-(6), ensuring the first appointments occur within the statutory timeframe and that appointments and reappointments are recorded.

• Maintain meeting minutes to demonstrate quorums (minimum five members) and outcomes, and keep formal records of determinations and directions on distributions because such directions are binding on the Trustees (s 3B(8), s 3B(11)(b)). Record the Archbishop’s use of any casting vote where relevant.

5. Fee policies for trustees (s 3BA)

• Establish a formal fee policy documenting all fees and commissions charged against trust capital and income. Benchmark fees against “fees lawfully chargeable” by Trustee Companies as referred to in s 3BA(2)-(4). Given that the Trustee Company Acts referenced have been repealed and that successor regulation exists, document the methodology for selecting the comparator Trustee Companies and for measuring their lawful fees. Retain contemporaneous evidence supporting the fee cap calculation and be ready to justify the average where fees differ.

6. Ensure contractual continuity and insurance (s 4)

• Maintain a comprehensive register of contracts, bonds, covenants and engagements inherited from the Standing Committee under s 4. Confirm insurance coverage and indemnities to manage liability exposure for continuing contractual obligations.

7. Follow procedures when the Synod resolves to incorporate a mission or institution (s 5A)

• If the Synod resolves to incorporate a mission or institution, prepare a full inventory of real and personal property used exclusively by the mission, identify any contractual rights and existing debts or encumbrances, and record the resolution formally.

• Prepare vesting instruments and supporting documents to effect the automatic statutory vesting under s 5A(2), relying on the s 5A(5) exemption from duties and will need to supply documentation to revenue and land titles offices to secure the intended exemption treatment. Maintain evidence that the property was “exclusively used” by the mission immediately before incorporation to support exemption claims.

• For schools and colleges seeking the s 5A(6) exemptions, establish evidence that land is vacant or used exclusively or mainly for educational purposes, and check whether any water connections would cause statutory water service charges to apply. Provide this factual evidence to local government and revenue authorities when claiming exemptions.

8. Reconcile Synod statutes and civil law obligations (s 2, s 5A(7))

• Review Synod statutes, orders, directions and regulations for any conflicts with State law. Ensure that Synod instruments governing trustee action are drafted to avoid inconsistency with State law and that any internal church directions that constrain Trustees are reconciled with civil statutory duties and the binding directions regime under s 3B.

9. Governance and minute discipline

• Maintain robust governance records for all Foundation meetings, Trustee decisions, Synod resolutions, financial statements and trust accounts. This is critical for defending actions under the validation clauses (s 3A(5), s 3BA(3)) and for demonstrating compliance with the statutory priorities and fee cap.

10. Seek contemporary advice on fee comparator and regulatory successors

• Because s 3BA references Trustee Company Acts that have been repealed and replaced, obtain legal and market advice on how to determine the correct contemporary comparator for trustee fees. Document the legal basis for any chosen comparator and keep contemporaneous records of source fee schedules.

11. Prepare for transparency with stakeholders

• Communicate with parishes, beneficiaries and creditors about the statutory priority rules that govern Cathedral Square receipts, the implications for distributions and the existence of binding Foundation directions. Where distributions are unlikely because of mortgage servicing or sinking fund commitments, provide explanations and a timetable for expected changes.

12. Monitor external statutory changes

• Keep under review developments in duties law, land tax, rating law and water services law that may affect the exemptions under s 5A. Likewise monitor trustee company regulation and fees.

By translating the Act’s text into these practical steps, trustees and diocesan officers can reduce legal and operational risk and ensure that property, finance and governance actions proceed in compliance with statutory requirements.