Anglican Church of Australia Diocesan Trustees and Lands Act 1918

Statutory corporations. The Act creates three new corporate bodies: the Bunbury Diocesan Trustees, the Kalgoorlie Diocesan Trustees, and the Trustees of the Northern Diocese (now the Diocese of North West Australia under the Anglican Church of Australia (Diocese of North West Australia) Act 1961). Each has perpetual succession, a common seal, and the capacity to sue and be sued in its corporate name. The members of each corporation are the trustees appointed by the respective diocesan Synod, and their successors are to be appointed from time to time “in accordance with the provisions of any Statute of the Synod”. This structure gives the trustees a distinct legal personality separate from the individual office‑holders, which is essential for holding title to land and managing property over time.

Subjection to trusts and Synod control. Although the trustees are incorporated with wide powers, those powers are not unfettered. Section 8 provides that every body of trustees “shall have and enjoy and may exercise all the like powers and authorities as are conferred by the said Act, 52 Victoria, No. 2, as amended by this Act upon the Diocesan Trustees of the Church of England in Western Australia”, but “subject in all respects to all and every liability, trust, and obligation affecting any real and personal estate vested in the said trustees, and subject also to the Statutes, orders, directions, and regulations of the Synod of the Diocese.” This means the trustees are essentially statutory trustees: they hold property on trust for the purposes of the church, and their commercial decisions (sale, mortgage, lease) must be consistent with any existing trusts and with the directions of the Synod. The Synod, as the legislative body of the diocese, retains ultimate control over property management through its statutes.

Power to grant leases with option of purchase. Section 7(b) extends the Perth trustees’ power of demise to include “building or repairing leases in possession or reversion for any term and upon and subject to such stipulations covenants and conditions as they may think fit, and with or without an option of purchase”. This is a significant expansion of common law trustee powers, which typically restrict long leases or options because they may fetter the trust. The Act overrides that restriction, but again subject to any existing trust and “subject in all respects to the Statutes, orders, directions, and regulations of Synod”. The provision reflects a legislative choice to give the church greater commercial flexibility, enabling it to encourage private development on church land through long‑term building leases and potential eventual sale.

Trusts freed and discharged. For the two specified Bunbury lots, section 13 permits the Bunbury trustees, with Synod consent, to sell, mortgage, or lease the land “freed and absolutely discharged from any trusts to which the said lands or any portion thereof may be subject whether declared by deed or otherwise”. This is an unusual legislative override of existing equitable obligations. The purpose was to enable redevelopment of those particular lots without being hamstrung by historical trust restrictions. The proceeds are then redirected to a new, narrower set of purposes: building a church, a minister’s residence, related buildings, their maintenance, or the Cathedral endowment. This creates a statutory variation of trust.

Purchaser protection. Section 14 provides a defensive shield: a purchaser, mortgagee, or lessee of the Bunbury lots “shall not be bound or concerned to inquire whether any power of sale, mortgage, or lease was duly and regularly made or exercised” and is not affected by notice of any irregularity. This reduces transaction costs for third parties and makes the land more marketable. It effectively shifts the risk of procedural non‑compliance from the counterparty to the trustees and the beneficiaries (the church).

The Act directly affects the Anglican Church’s diocesan trustees in Western Australia: the Perth Diocesan Trustees, the Bunbury Diocesan Trustees, the Kalgoorlie Diocesan Trustees, and the Trustees of the Northern Diocese (now the Diocese of North West Australia). These corporate bodies are the primary actors: they are incorporated, granted powers, and subjected to duties. Their members (the individual trustees appointed by Synod) are affected in their capacity as directors of the corporation, as they must exercise powers consistently with Synod statutes and existing trusts.

The Synods of the four dioceses are also directly affected, because the trustees’ powers are made “subject to the Statutes, orders, directions, and regulations of the Synod”. The Synod must therefore enact statutes to authorise any major property transaction beyond routine management. For the Bunbury lots, section 13 requires “the consent and subject to any statute of the Synod” before the trustees can sell, mortgage, or lease free from trusts.

Administratively, the Registrar of Titles and the Registrar of Deeds are affected by section 11, which requires that the change of name of the Perth trustees be registered and noted “on every certificate of title and other registered document affecting land in the name of the corporation free of charge”. This imposes a duty on the land registry to update records without fees.

Third parties who deal with the trustees are also affected, especially those buying, lending against, or leasing the Bunbury lots. They benefit from the protection in section 14, but they lose any ability to rely on the trustees’ breach of trust as a defence or ground to rescind a transaction. For other land held by the trustees (outside the Bunbury lots), the protection is not directly given by this Act, but they may have protection under the general law or under the 1888 Act as incorporated.

Creditors, contractors, and other counterparties of the trustees are affected by the trustees’ capacity to sue and be sued in the corporate name. The dissolution of the earlier incorporation under the Associations Incorporation Act 1895 is validated so that prior deeds and contracts remain effective.

Finally, beneficiaries of the church trusts (the church congregation, clergy, and charitable purposes) are indirectly affected. The variation of trust for the Bunbury lots redirects what were presumably general trust assets to the specific purposes of a church building, minister’s residence, and Cathedral endowment. They may have lost a potential claim if the trustees had acted irregularly, but those claims are extinguished by the purchaser protection.

Duty to act subject to trusts and Synod statutes. The primary duty of all trustees incorporated under this Act is to exercise their powers subject to (1) any liability, trust, or obligation affecting the property, and (2) the Statutes, orders, directions, and regulations of the Synod of their diocese (s. 8, also s. 7(b)). This means the trustees cannot treat the property as their own; they are fiduciaries. If a Synod statute forbids certain transactions, the trustees must comply regardless of what the Act’s general powers would allow.

Duty to apply net moneys for specified purposes. Under section 13(2), the Bunbury Diocesan Trustees must apply the net proceeds from the sale or mortgage of Lots 221 and 298 “for or towards the building of a church in Bunbury, and a minister’s residence and other buildings in connection with such church or residence or for or towards the maintenance and repair of any such buildings or for or towards the endowment of the Cathedral as the Bunbury Diocesan Trustees may approve and direct.” This removes discretion: the money cannot be used for general diocesan purposes or other charitable objects. The trustees have a right to approve and direct the specific allocation within that menu, but they cannot disregard the statutory purpose.

Right to grant leases with option of purchase. The Perth trustees and, by extension, the other diocesan trustees have the right to grant building or repairing leases for any term (including in reversion) and with an option for the lessee to purchase the land (s. 7(b)). This is a valuable power for facilitating long‑term private investment on church land. The trustees can set the terms as they think fit, but still subject to trusts and Synod statutes.

Right to change common seal. Each body of trustees has the right to alter its common seal from time to time as it thinks fit (s. 6). This is a routine corporate power.

Right to sue and be sued. The corporate name gives the trustees standing to enforce contracts and defend claims (s. 6).

Purchaser’s right to ignore irregularities. Section 14 gives purchasers, mortgagees, and lessees of the Bunbury lots the right not to inquire into the trustees’ authority or the application of moneys. It also protects them from being affected by notice of any irregularity. However, the section does not protect against fraud or forgery; it only protects against defects in the exercise of the trustees’ powers.

Right to have name change noted on title free of charge. The Perth trustees have a right to have the new corporate name recorded on all existing certificates of title and other registered documents without paying registration fees (s. 11). This reduces administrative costs.

The Act itself contains no specific penalty provisions. It does not create any criminal offences or civil fines for non‑compliance. Enforcement of the duties imposed by the Act would therefore rely on general equitable remedies for breach of trust, or on contractual remedies if the trustees exceed their powers when dealing with third parties. For instance, if the Bunbury trustees used the net proceeds of the Lots 221 and 298 sale for a purpose outside the statutory list (s. 13(2)), the beneficiaries (the church) could bring an action for breach of trust, potentially seeking an account of profits or an injunction to recover the misapplied funds. Similarly, if the Perth trustees granted a lease that was not subject to Synod statutes as required, the Synod could arguably challenge the transaction as ultra vires the trustees’ statutory authority.

Section 14 limits enforcement by third parties: a purchaser, mortgagee, or lessee cannot be sued for failure to inquire into the trustees’ compliance with the Act. But this does not bar the church from suing the trustees themselves for any loss caused by an irregular exercise of power. The trustees could be personally liable for breach of fiduciary duty if they acted without Synod consent or diverted trust funds. The Act also validates prior contracts made under the since‑dissolved incorporations, so any default in performance of those contracts could still be enforced by the counterparties.

Because the Act is a private Act for the Anglican Church, enforcement is likely internal: the Synod can remove trustees, pass new statutes to regulate their conduct, or seek declaratory orders from the Supreme Court. The only external enforcement mechanism is the general law of trusts and corporations. Section 12, which validates past transfers, means that any prior irregularity is cured, so beneficiaries cannot challenge those transfers.

Anglican Church of Australia (Diocesan Trustees) Act 1888 (52 Vict. No. 2). This is the primary empowering statute for the Perth trustees. Section 8 of the 1918 Act applies that Act (as amended by s. 7 of this Act) to the Bunbury, Kalgoorlie and Northern Trustees, giving them the same powers as Perth (subject to their own Synod statutes). Section 7 of the 1918 Act amends the 1888 Act by inserting a new power to redeem mortgages and by expanding the power to grant building leases with options of purchase. The 1888 Act remains in force and must be read together with the 1918 Act.

Anglican Church of Australia Lands Act 1914. Section 10 applies that Act to the three new trustees in respect of Crown‑granted lands vested in them. The 1914 Act gives special powers over land originally granted by the Crown to the church. The 1918 Act makes the earlier Act’s provisions directly applicable to the new bodies.

Transfer of Land Act 1893 and Registration of Deeds Act 1856. Section 11 requires that the change of name from “The Diocesan Trustees of the Church of England in Western Australia” to “The Perth Diocesan Trustees” be registered and noted on all certificates of title and other registered documents under those Acts, free of charge. This ensures the Torrens and deeds registers reflect the correct corporate identity. Section 12’s validation of prior transfers also operates under the Torrens system: after confirmation, the transfers are effective to pass legal title.

Associations Incorporation Act 1895 (repealed). Section 2 dissolves the incorporation of the Bunbury and Kalgoorlie trustees under that Act, but validates all prior acts under that incorporation. The 1895 Act was later repealed by the Associations Incorporation Act 1987.

Anglican Church of Australia Constitution Act 1960 and Anglican Church of Australia (Diocese of North West Australia) Act 1961. The notes to the reprint indicate that references to the “Church of England in Western Australia” are now to be construed as references to the Anglican Church (1960 Act s. 5), and references to the “Northern Diocese” are now to be read as “Diocese of North West Australia” (1961 Act s. 5(2)). Therefore, the 1918 Act must be read with those name changes. The 1961 Act may also affect which Synod has authority over the Northern trustees.

Anglican Church of Australia Act 1976. This Act changed the church’s name from “Church of England” to “Anglican Church of Australia”. Section 7 of that Act amended the short title of the 1918 Act (replacing “Church of England” with “Anglican Church of Australia”) and also changed the name references in sections 1 and 10. The 1976 Act did not alter substantive provisions.

Local Government (Consequential Amendments) Act 1996. Section 4 of that Act amended section 13(1) of the 1918 Act to replace the words “municipal district of Bunbury” with “local government district of Bunbury”. This is a purely mechanical updating to reflect local government reforms.

Land Information Authority Act 2006. Section 123 of that Act amended section 11 of the 1918 Act by updating references to the registration Acts (removing obsolete references to the Registration of Deeds Act 1856 and the Transfer of Land Act 1893 as they then stood). No substantive change.

Omission of section 9. Under the Reprints Act 1984 s. 7(4)(e), section 9 was omitted. It is not known what it contained, but it has been removed from the reprint.

The Act was originally enacted as 34 of 1918 (9 Geo. V No. 24) and cited as the Church of England Diocesan Trustees and Lands Act 1918. It received royal assent on 24 December 1918 and commenced immediately.

The first amendment was by the Church of England Diocesan Trustees and Lands Act Amendment Act 1956 (56 of 1956), which amended section 13. The 1956 amendment expanded the powers of the Bunbury trustees in relation to the two lots (probably to add the power to lease with option of purchase and the power to apply proceeds for the Cathedral endowment, but the reprint does not preserve the exact pre‑amendment text). That amendment received assent on 27 December 1956 and commenced same day.

The Anglican Church of Australia Act 1976 (121 of 1976) section 7 changed the short title to its current form (Anglican Church of Australia Diocesan Trustees and Lands Act 1918) and updated references to the church’s name in sections 1 and 10. The commencement was delayed: the Act was assented on 1 December 1976 but the name change commenced on 24 August 1981 per proclamation.

The Local Government (Consequential Amendments) Act 1996 (14 of 1996) section 4 amended section 13(1) to replace “municipal district of Bunbury” with “local government district of Bunbury”. It commenced 1 July 1996.

The Land Information Authority Act 2006 (60 of 2006) section 123 amended section 11 to update the references to the registration Acts (changing “Transfer of Land Act 1893 and the Registration of Deeds Act 1856” to reflect the modernised regime). It commenced 1 January 2007.

The reprint history shows two reprints: one as at 3 May 2002 (which incorporated amendments up to 1996) and the current reprint as at 4 September 2015 (which includes the 2006 amendment). Section 9 was omitted from the reprint under the Reprints Act 1984.

No other amendments appear in the compilation table.

The source text of the Act does not contain any references to court cases or judicial consideration. The Act was passed to resolve “doubts as to the legality of the incorporation” of the Bunbury and Kalgoorlie trustees under the Associations Incorporation Act 1895. Those doubts may have arisen from an erroneous belief that a private corporation could not be incorporated under that Act, or from procedural defects in the incorporation. The Act cured those doubts by dissolving the earlier incorporations and re‑creating them with clear statutory authority. Given that the Act is now nearly a century old and its provisions are largely mechanical, there is likely little or no reported litigation interpreting its sections. The validation in section 12 of prior conveyances suggests that there may have been a dispute or at least uncertainty about the title of the transferred properties, but the Act was designed to moots such claims. The special protection for purchasers in section 14 also suggests a legislative intent to prevent litigation against third parties who deal with the Bunbury lots. No doubt the Act has been relied upon in routine conveyancing practice, but without generating reported decisions. The absence of litigation history is consistent with the Act’s character as a clean‑up and enabling statute rather than a contentious one. None of the later amending Acts appear to have been prompted by court rulings.

Name changes cause confusion. The Act uses “The Diocesan Trustees of the Church of England in Western Australia” in sections 7 and 8, but section 11 immediately changes that name to “The Perth Diocesan Trustees”. The notes make clear that the pre‑change references have not been altered. A reader who does not cross‑check the notes might think there are two different bodies. Section 12 also refers to the old name in validating transfers. Practitioners dealing with historical documents must trace the name change.

“Northern Diocese” is now “North West Australia”. Section 5 creates “The Trustees of the Northern Diocese”, but note 6 explains that under the Anglican Church of Australia (Diocese of North West Australia) Act 1961 s. 5(2), any reference in any law of the State to the Trustees of the Northern Diocese is to be read as a reference to the Trustees of the Diocese of North West Australia. This is a statutory substitution. Anyone searching for the current trustees should use the latter name.

Church of England references are now Anglican. The preamble and many sections still refer to “Church of England”. Under the Anglican Church of Australia Constitution Act 1960 s. 5 and the Anglican Church of Australia Act 1976 s. 7, those references must be construed as references to the Anglican Church of Australia. The reprint notes this but warns that the old references have not been changed “due to its context”.

Section 13 consent requirements. The power to sell, mortgage, or lease the Bunbury lots free from trusts requires “the consent and subject to any statute of the Synod”. A trustee who acts without obtaining a specific Synod statute or consent may be in breach of trust. Section 14 protects the counterparty, but not the trustees. Trustees could still face personal liability for acting without Synod authority.

Net moneys only. Section 13(2) directs that “net moneys” from sale or mortgage must be applied for the specified purposes. Gross proceeds are not mentioned. It is unclear whether trustees can deduct costs of sale, legal fees, etc. before applying the money. Reasonable interpretation is that net moneys means after expenses of the transaction, but the Act does not define “net”.

Protection does not extend beyond Bunbury lots. Section 14 protects purchasers, mortgagees, and lessees only “of any such lands”, meaning the Bunbury lots. For any other land held by the trustees, a counterparty dealing with the trustees cannot rely on this statutory shield. They may need to inquire into whether the trustees have Synod approval and whether the transaction is within the trustees’ powers under the 1888 Act.

Validation of prior transfers under section 12. This section validates transfers already made by the Perth trustees to the Bunbury and Kalgoorlie trustees. However, it only validates those made “in pursuance of any Statute of the Perth Diocesan Synod”. If a transfer was made without such a statute but was arguably authorised by common law, the validation might not cover it. The Act also does not validate transfers made by the Bunbury or Kalgoorlie trustees themselves.

Omitted section 9. The reprint omits section 9. Its content is unknown, but it may have dealt with the internal management of the new trustees or transitional matters. The omission likely means it is spent or repealed, but a thorough researcher might want to check the original assent.

For diocesan trustees. Determine which body of trustees you serve. If you are the Bunbury or Kalgoorlie trustees, confirm that your incorporation is now under this Act, not the old Associations Incorporation Act 1895. Ensure your constitution or Synod statute clearly identifies you as the statutory corporation. Maintain a common seal and a register of appointments of trustees as per Synod statutes. When dealing with land, always check whether the property is subject to any pre‑existing trust (e.g., a trust for a specific mission or legacy). Any sale, mortgage, or lease must be within the powers of the 1888 Act (as amended) and the 1914 Act, but also must comply with any Synod statutes that apply. For Perth trustees, the name change under section 11 must be registered on all existing certificates of title: you should apply to Landgate (the land registry) to update the names on the records, relying on the free‑of‑charge provision. Provide a certified copy of the Act and a request under section 11.

For Bunbury trustees dealing with Lots 221 and 298. Before selling, mortgaging, or leasing these lots free from trusts, you must obtain both the consent of the Synod and a statute of the Synod authorising the transaction. The Act does not specify the form of consent, but a resolution of Synod recorded in minutes or a formal Synod statute would suffice. The transaction can then be completed: the counterparty is protected under section 14, but the trustees must ensure the net proceeds are applied only to the statutory purposes (building a church, minister’s residence, maintenance, or Cathedral endowment). Keep separate accounts showing the receipt and application of moneys. If the proceeds are used for the Cathedral endowment, document the transfer to the Cathedral trust.

For purchasers, mortgagees, and lessees of the Bunbury lots. You are protected by section 14 from having to inquire into whether the trustees had Synod consent or whether the sale was proper. However, for other land held by the trustees, you should obtain a copy of the relevant Synod statute authorising the transaction and a certificate from the trustees that they are acting within power. For the Bunbury lots, you may still wish to obtain a statutory declaration from the trustees confirming compliance, but you are not obliged to do so. The protection only applies to notice of irregularity, not to fraud; if you have actual knowledge of a breach of trust, you may not be protected.

For Synod officers. Ensure that any statute authorising property transactions by the trustees is passed by the necessary majority and recorded. If the Synod wishes to restrict or expand the trustees’ powers under the 1888 Act, it can do so by statute, but must not conflict with the Act’s provisions. For the Bunbury lots, the Synod must specifically consent to any free‑from‑trust sale, mortgage, or lease. The Synod should also monitor the application of proceeds to ensure the statutory purposes are met.

For the land registry. On receiving an application from the Perth Diocesan Trustees to note the change of name under section 11, process it without charging fees. Update the records accordingly. Also be aware that the Northern Diocese trustees are now known as the Trustees of the Diocese of North West Australia, though this Act still uses the old name; any registration of land in their name should use the current name as per the 1961 Act.