Charities Act 1978

Cy près and charitable property: The Act codifies the circumstances in which property given for charitable purposes may be applied cy près. Section 2 lists grounds (s 2(1)(a)-(e)), including fulfilment, impossibility of carrying out the directions consistent with the spirit of the gift, partial utility of the gift, changed geographic or class references, or where the purposes have become adequately provided for or ceased to be charitable (s 2(1)). Section 2(4) imposes a trustee duty to take steps to secure cy près application where the case permits and requires it.

Donors unknown or disclaiming: Section 3 treats proceeds of indistinguishable collections and certain fundraising activities as conclusively presumed to be from donors who cannot be identified (s 3(2)). Where property is given for specific charitable purposes that fail and donors are unknown or disclaiming, the property is to be applied cy près as if given with a general charitable intention (s 3(1)). There are procedures for schemes and limited rights for late claimants (s 3(4)-(6)), including a 12-month claim period for recovery from the charity under a scheme (s 3(4)(b)).

Attorney-General as alternative decision-maker: For gifts below statutory corpus thresholds the trustees may apply in writing to the Attorney-General for directions instead of going to the court (s 4(1)). The AG may investigate, require information from trustees (s 4(2)), and, if satisfied as to charitable character and thresholds, may in absolute discretion sanction schemes and authorise sales, conversions or vestings despite absence of power in the trust instrument (s 4(3)(c)-(d)). Similar provision is made for obtaining an opinion or advice from the Attorney-General (s 5), and Part IA contains parallel AG approval for trustees to invest eligible property in investment common funds (ss 7F-7H). The Act repeatedly emphasises that the Attorney-General’s powers do not exceed those of the court in charity proceedings (s 4(4), s 7H(3)).

Collective investment and commissions: Part IA permits trustees of property to create and invest in investment common funds for collective investment (s 7B(1)). Trustees may bring funds into or withdraw from the common fund without breaching trust even if the trust instrument directs otherwise (s 7B(2)). Income must be periodically distributed among participating trusts with due regard to participation (s 7B(3)), although trustees may retain parts of income as capital protection or add to the capital (s 7B(4)). A commission of up to 5% of annual income may be deducted for administration (s 7B(5)-(7)).

Charitable trusts and government-connected entities: Part IB (s 7J-7M) introduces the concept of distributing trust funds to an eligible entity that would be a deductible gift recipient under Commonwealth law, even if that entity has a connection to government (s 7K). The power is conditional upon a declaration in the form of the Schedule being in force for the trust (s 7K(3)), and prior distributions to such entities are validated (s 7K(5)-(6)). The legislative note instructs that eligible entity is a DGR under the Income Tax Assessment Act 1997 and provides factors for assessing "connection to government" (s 7K(7)).

Supervision and inquiry: Part II (ss 8-17) defines charities and charitable estates (s 8) and gives the Attorney-General power to appoint inspectors to inquire into administration, management and application of property (s 9). Inspectors have powers modelled on the former Division 5 of Part I of the Evidence (Miscellaneous Provisions) Act 1958, including seizure of documents (s 10(1)-(2)). Persons examined cannot claim a privilege against self-incrimination as a bar to answering, but answers so given are protected from admission in criminal proceedings except for prosecution under the inspection provisions or perjury (s 10(3); s 11(7)). Inspectors must record examinations (s 11), prepare reports to the Attorney-General (s 12), and their reports may lead to court orders removing trustees or executors (s 13). The Attorney-General may recover inquiry costs from trustees, executors or the charity (s 15). Concealment or removal of relevant documents carries an indictable offence with imprisonment up to five years (s 16).

Delegation and administrative detail: The Act permits delegation by inspectors (s 14) and by the Attorney-General of his or her functions under the Act except the power of delegation itself (s 18). The Governor in Council may increase monetary limits (s 4A) subject to parliamentary tabling and possible disallowance (s 4B). Regulations and prescribed forms and fees may be made (s 7(1)-(2)). Transitional provisions for amendments (s 7A) and savings (e.g. s 7I continuing Part IA despite later increases in corpus) are included.

Trustees and administrators of charitable trusts and charities: Trustees are the primary actors whose powers, duties and liabilities are directly modified. The Act creates statutory powers to seek AG directions (s 4), seek AG opinions (s 5), invest in common funds if the Part applies (ss 7B, 7F-7H), and to distribute to eligible entities subject to a Schedule declaration (s 7K). Trustees may also benefit from statutory protections from breach-of-trust liability when acting in accordance with AG directions or approvals (s 4(5), s 5(3), s 7H(4)). The Act imposes positive duties on trustees including a duty to take steps to enable cy près application (s 2(4)), and compliance obligations when required to produce information or documents to the Attorney-General or an inspector (s 9A; s 10(1)-(2)).

Charities and their beneficiaries: Charitable institutions are affected by the streamlining of small-corpus cy près procedures (s 4) and the possibility that funds with initially specific purposes may be re-applied cy près under statutory schemes. Beneficiaries may see property redirected to alternate charitable purposes when original purposes fail under conditions in s 2 and s 3. Receipts from trustees to another charitable institution are sufficient discharge for trustees subject to the commencement restriction (s 6(1)-(2)).

Donors and claimants: Donors or persons entitled through donors are affected by the presumptions and the claim process in s 3. The Act treats proceeds of indistinguishable collections or certain fundraising proceeds as conclusively presumed to be from unidentified donors (s 3(2)). For other gifts, the court may decide it is unreasonable to incur expense to identify donors, and schemes must provide for claims with a 12-month limit from scheme date for recovery (s 3(3)-(4)). Thus donors who seek return of property must act promptly and may face legal thresholds and cost considerations.

Attorney-General and inspectors: The Attorney-General has broad investigative and decision-making roles: receiving applications (ss 4, 5, 7F), conducting inquiries and investigations (ss 4(2), 7G), making approvals and directions in absolute discretion (s 4(3), s 7H(1)), and receiving inspector reports (s 12). Inspectors exercise statutory coercive powers including seizure and examination (s 10(1)-(2)), ability to record and use examination material (s 11), delegate most functions (s 14), and report leading to court actions such as trustee removal (s 13). The Attorney-General also decides on allocation or recovery of inquiry costs (s 15) and must table Orders under s 4A (s 4B).

Executors and administrators of estates: Executors of charitable estates may be subject to inspection in relation to administration of estates where charities will participate (s 8 definition). They also face potential removal by the court upon inspector report (s 13), and may be ordered to pay inquiry costs (s 15).

Government bodies and entities connected to government: Part IB (s 7K) specifically contemplates transfers to eligible entities that would be deductible gift recipients but may have a government connection. The Act creates a procedure for trustees to provide funds to such entities, with a Schedule-form declaration required to trigger the power (s 7K(1)-(3), Sch). The Act lists factors to assess the extent of a connection to government (s 7K(7)).

Courts and parliament: The Supreme Court retains powers in charity proceedings; the Act expressly states that the Attorney-General does not have greater powers than the court in charity matters (s 4(4), s 7H(3)). The Governor in Council may change monetary thresholds (s 4A) but Orders must be tabled and can be disallowed by either House within specified sitting days (s 4B).

Third parties and auditors: Where inspectors take possession of documents, third parties who would be entitled to inspect those documents are to be permitted to do so (s 12(3)(e)). Auditors and advisers who assist trustees in complying with inquiries or in preparing applications to the Attorney-General will face compliance tasks in relation to prescribed forms and fees under regulations (s 7). There is a compliance cost for anyone who must supply information under s 9A: statutory notice must give at least one month to comply and specify form (s 9A(2)).

Trustee duties around cy près and administration: Section 2(4) imposes a trustee duty to take steps to secure effective charitable use of property by applying cy près where the case permits and requires it. Section 2(1) sets out the concrete circumstances warranting cy près application , fulfilment, impossibility, partial utility, changed geographic/class references and obsolescence or redundancy of original purposes , and section 2(3) ensures references to original purposes include any statutory or scheme-based alterations.

Application and approval rights: Trustees have two principal channels for obtaining directions or approvals. For smaller funds as defined by s 1A, trustees may apply to the Attorney-General in writing and on payment of any prescribed fee rather than to the court (s 4(1)). The Attorney-General similarly may give opinions or advice on matters affecting trustees’ duties when corpus is below the threshold (s 5(1)). For investment in common funds, trustees of eligible property may either apply to the court (s 7D) or apply to the Attorney-General for approval under Part IA (s 7F). Applications must be in writing and accompanied by prescribed fees and, where required, may include the specification of the property or class of trusts (s 7D(2), s 7F(2)).

Attorney-General discretion and investigatory powers: The Attorney-General can make investigations and require trustees to furnish information in relation to applications (s 4(2), s 5(2), s 7G). Section 9A allows the Attorney-General to require trustees to give information to determine whether an inquiry should be conducted; such a requirement must be in writing, identify the information and give not less than one month to comply (s 9A(2)). Failure to comply without reasonable excuse is an offence carrying a penalty prescribed as 60 penalty units (s 9B).

Protections for trustees acting on AG directions or advice: Where the Attorney-General sanctions a scheme or gives authority under s 4(3) and trustees apply property cy près in accordance with that scheme, the trustees shall not be subject to liability for breach of trust arising solely from that application (s 4(5)). Similarly, a trustee acting in accordance with the Attorney-General’s opinion or advice is deemed to have acted in accordance with the trust unless the opinion was given in ignorance of material facts or court proceedings have been sought on the matter (s 5(3)). Part IA contains the same protection where trustees invest eligible property in common funds in accordance with an Attorney-General approval (s 7H(4)).

Investment and commission rules: Trustees who are permitted to operate investment common funds must distribute income periodically among participating trusts with regard to participation (s 7B(3)), but may also add income to capital or create reserves against capital depreciation (s 7B(4)). Trustees may deduct up to 5% of annual income from a trust in a common fund as commission for administration, and that commission is deemed full payment for administration of the trust in the fund (s 7B(5)-(6)). No other charges may be made except as allowed by the trust instrument (s 7B(7)). Trustees must exercise powers under Part IA in accordance with any court order or AG approval and their conditions (s 7C).

Obligations during inquiries: An inspector may require production of documents and examine persons (s 10(1)-(2)). Evidence rules preserve limited protection for persons who claim that an answer might incriminate them , the question and answer are not admissible in criminal proceedings other than under the inspection provision or for perjury (s 10(3); s 11(7)). Inspectors must transcribe recordings and offer examinees a chance to sign the record; examinees are entitled to a copy free of charge (s 11(1)-(6)). The Attorney-General may retain documents and permit inspection or use for legal proceedings (s 12(3)).

Criminal and civil remedies: Concealment, destruction or removal out of the State of documents required to be produced under Part II is an indictable offence punishable by up to five years’ imprisonment (s 16(1)-(2)). The Magistrates’ Court may hear such matters with a lower maximum of two years’ imprisonment if it is proper to do so (s 16(3)). The Attorney-General may seek costs orders for inquiries and may direct payment of costs from charity funds or apply to the court for orders against trustees or executors (s 15(1)).

Declaration requirement for distribution to government-connected entities: Trustees must have in force a declaration in the form of the Schedule to exercise the power under s 7K to give funds to an eligible entity that has a government connection (s 7K(3); Sch). The Schedule is a trustee declaration executed as a deed (Sch).

Delegation and agency: Inspectors may delegate most powers under Pt II, except the powers to administer oaths/affirmations and to examine on oath or affirmation (s 14(1)). The Attorney-General may delegate any powers or functions under the Act, other than the power of delegation itself (s 18).

Criminal penalties for document interference: Section 16 makes it an offence to conceal, destroy, mutilate or alter documents required under Part II, or to send them out of the State. The penalty is significant: the offence is indictable with a maximum imprisonment term of five years (s 16(2)). The Magistrates’ Court may hear and determine the offence where appropriate, with a maximum two-year term if convicted in that court (s 16(3)). A defence exists if the defendant proves absence of intent to defeat the purposes of Part II or to delay or obstruct an inquiry (s 16(4)).

Penalties for non-compliance with information requirements: Section 9B creates an offence for failing to comply with a written requirement under s 9A that asks trustees to provide information necessary to decide whether an inquiry should be conducted. The statutory note gives a penalty of 60 penalty units for that offence. The legislative structure requires the Attorney-General to give a written notice identifying the information, the timeframe (not less than one month), and form of information required (s 9A(2)).

Inspectorial powers and evidentiary constraints: Inspectors can take possession of documents for the period necessary for the inquiry (s 10(2)) and must provide records of examinations to the person examined; those records may be used in evidence in legal proceedings against that person, subject to protections for answers claimed to be self-incriminating (s 11(5)-(7)). The Attorney-General may retain documents forwarded by an inspector to determine whether legal proceedings should be instituted and may permit their use in such proceedings (s 12(3)(a)-(d)). The Act therefore supplies a pathway from inspection to prosecution or civil proceedings.

Court enforcement powers: The Act preserves and supplements court powers. It expressly states the AG does not have greater powers than the court in charity proceedings (s 4(4), s 7H(3)) and gives the court power to remove trustees or executors if an inspector recommends removal (s 13). The Attorney-General may apply to the court for orders to recover costs of inquiries from trustees or executors, and the court may make orders in the terms sought or vary them as it sees fit (s 15(1)-(2)).

Administrative enforcement: Where the Attorney-General sanctions a scheme or gives authority under s 4(3) trustees making applications cy près in accordance with that sanction are not liable for breach of trust solely because of that application (s 4(5)). Similarly, trustees acting on the AG’s opinion are deemed to have acted in accordance with their trust duties unless the opinion was given in ignorance of material facts or court proceedings exist (s 5(3)). Part IA contains a like protection for trustees investing eligible property in common funds with AG approval (s 7H(4)). These provisions allocate enforcement risk: compliance with AG directions or approvals transfers a legal shield to trustees.

Procedural constraints and parliamentary oversight: The Governor in Council may increase monetary limits (s 4A), but Orders must be tabled before both Houses of Parliament within 10 sitting days and may be disallowed within 15 sitting days (s 4B). This gives a parliamentary check on administrative changes to thresholds that determine whether trustees may use the Attorney-General pathway.

Evidence Act 2008 and evidentiary definitions: Section 8 defines "document" with the same meaning as in the Evidence Act 2008 (s 8), and s 10(1) expressly models inspector powers on the former Division 5 of Part I of the Evidence (Miscellaneous Provisions) Act 1958. The Act’s evidentiary rules on compelled answers, non-admissibility of self-incriminating answers in subsequent criminal proceedings (except for prosecution under inspection provisions or perjury) are consistent with the statutory approach to compelled evidence and limited use immunity (s 10(3); s 11(7)).

Income Tax Assessment Act 1997 (Commonwealth): Part IB refers to "eligible entity" being a deductible gift recipient within the meaning of the Income Tax Assessment Act 1997 (s 7K, note and definition). Section 7K(7) provides factors to consider in determining government connection; that link ties the Act’s charitable trust distribution powers to Commonwealth tax status of recipient entities and recognises Commonwealth DGR designations.

Hospitals and Charities Act 1958: Section 17 restricts the Attorney-General’s power to appoint an inspector to inquire into specific categories , registered benevolent societies, incorporated institutions, and scheduled hospitals , without the consent of the Minister of Health, as defined under the Hospitals and Charities Act 1958 (s 17(1)). Section 17(2) preserves the inspector’s power to summon persons associated with those types of bodies when another charity is under inquiry.

Interpretation of Legislation Act 1984 and style/notes: The endnotes incorporate interpretive provisions and confirm that headings, notes, form and punctuation in the Act are part of the Act per the ILA amendments. The endnotes also provide the formal amendment record and commencement details, which affect legal interpretation and transitional application (Endnotes).

Oaths and Affirmations and Inquiries Acts: Amendments noted in the table of amendments reference the Oaths and Affirmations Act 2018 and the Inquiries Act 2014 as having modified the operation or powers of inspectors and the form of administering oaths. For example, s 10(1) was substituted to align inspector powers with the Inquiries Act 2014 (Endnotes; Table of Amendments). Section 14’s exceptions about oaths and affirmations reference later legislative amendments (s 14(1) amended by No. 6/2018).

Charity regulatory overlay and court jurisdiction: The Act preserves court jurisdiction in charity matters, and makes explicit that Attorney-General powers do not derogate from court powers (s 4(4), s 7E, s 7H(3)). Use of the AG route is conditional and designed as an administrative alternative for certain circumstances but does not remove the ability of parties to seek the court’s intervention.

Tax consequences and trustee declarations: The Schedule requires trustees to have regard to the effect of the declaration on income tax liability when approving the power under s 7K. That cross-reference means trustees must consider tax consequences governed by Commonwealth law when making the Schedule declaration.

Regulations and fee regimes: Section 7 allows the Governor in Council to make regulations, including forms and fees for applications under the Act, and authorises sliding-scale fee structures (s 7(1)-(2)). Regulations will therefore set procedural and cost parameters for AG applications and Part IA/IB processes.

The Act as provided includes a consolidated list of amendments in the Endnotes. Key changes recorded in the table of amendments and text are these, with the provision references as they appear in the consolidated Act:

• Charities Act 1978 (original): Assented 19 December 1978; core cy près and related powers commenced in 1979 (Endnotes).

• Charities (Amendment) Act 1981 (No. 9710): Amended definitions and inserted Part II provisions (ss 8-17 were inserted by No. 9710 s 3). The 1981 amendments brought in the supervisory regime later codified as Part II (Endnotes).

• Courts Amendment Act 1989 (Nos 16/1986 and related): Amendments in the late 1980s altered s 4(1), s 4(3) and added related procedural adjustments to the AG alternative (Table of Amendments indicates Courts Amendment Act 1989 entries). Specific textual changes cited in the Act show s 4(1)(a)/(b) and s 4(3)(a)/(b) were substituted or amended by No. 16/1986 s. 31.

• Magistrates' Court (Consequential Amendments) Act 1989 (No. 57/1989): Affected penalty and court jurisdictional treatment, evident in s 16 where the Magistrates’ Court may hear and determine the indictable offence (Endnotes).

• Health Services (Further Amendment) Act 1998 (No. 66/1998): Section 2(5) insertion and related provisions (Endnotes indicate s 15 commencement) adjusted application to health services and the cy près doctrine with reference to the Health Services Act.

• Statute Law Revision Act 2000 and other technical amendments (No. 74/2000): Minor amendments and repeals affecting cross-references (Endnotes).

• Charities (Amendment) Act 2005 (No. 11/2005): Significant package. It substituted and added monetary thresholds in ss 1A, 4, 5, and introduced Part IA (ss 7B-7I) enabling investment in common funds and AG approvals for such arrangements. The Act also added ss 9A-9B requiring trustees to provide information and setting penalties (s 9B’s 60 penalty units) (Endnotes; s 7A transitional provision). Commenced 30 November 2005.

• Statute Law (Further Revision) Act 2006 and Charities (Amendment) Act 2006 (No. 73/2006): These introduced Part IB (ss 7J-7M) on charitable trusts, including s 7K allowing distribution to government-connected eligible entities and the Schedule declaration. These provisions commenced on 10 October 2006 (Endnotes).

• Statute Law Amendment (Evidence Consequential Provisions) Act 2009 (No. 69/2009): Amended evidentiary definitions and inspector powers to align with modern evidence statutes, affecting s 10 and definitions (Endnotes).

• Inquiries Act 2014 (No. 67/2014): Substitution of s 10(1) to align inspector powers with the Inquiries Act provisions and modernised investigatory powers (Endnotes).

• Oaths and Affirmations Act 2018 (No. 6/2018): Amended s 14(1) exceptions regarding oath and affirmation powers (Endnotes).

• Justice Legislation Amendment (Drug Court and Other Matters) Act 2020 (No. 43/2020): Inserted Part III and s 18 delegating Attorney-General powers under the Act (s 18 inserted by No. 43/2020 s. 43) and altering commencement (commenced 26 April 2021 for ss 42, 43) (Endnotes).

The consolidated text shows amendments either by substitution or insertion across these instruments. The Endnotes provide precise assent and commencement dates for each amending Act and note where amendments relate only to specific provisions.

The consolidated Act text and Endnotes supplied here do not include any judicial decisions or litigation summaries. The statutory text itself references the court (the Supreme Court) as the ultimate forum for charity proceedings and preserves ordinary court powers in charity matters (s 4(4), s 7E). The Act provides mechanisms for trustees to approach the court (s 7D) or to use the Attorney-General alternative (s 4, s 7F). No cases, appeals or published judicial interpretations are included in the source material provided. Where litigators or researchers require case law interpreting these provisions , for example the application of s 2 grounds for cy près, the scope of AG discretion under s 4(3), or the limits of inspectors’ powers under s 10 , those authorities are not contained in this text and must be sourced separately from Victorian Supreme Court and appellate decisions.

Attorney-General “absolute” discretion but not a substitute for court in some respects: Sections 4(3) and 7H(1) give the Attorney-General an "absolute discretion" to sanction schemes or approve Part IA applications; trustees may therefore obtain administrative directions rather than court orders. However the Act also states the Attorney-General does not have greater powers than the court in charity proceedings (s 4(4), s 7H(3)). That means AG discretion is wide but bounded by legal limits that the court could exercise. Practically, reliance on the AG pathway trades litigation-finality for administrative expediency and a statutory shield from breach-of-trust liability when acting under that AG authority (s 4(5), s 5(3), s 7H(4)). Trustees should note that AG approval may be attractive for speed and cost, but the AG’s decision is administrative and may not have the same precedential effect or enforceability as a court determination.

Monetary thresholds and Governor-in-Council changes: The thresholds that determine whether trustees can use the Attorney-General route are in s 1A and s 4, including $500,000 and $50,000 benchmarks. Those monetary limits may be increased by Order under s 4A, but such Orders must be tabled in Parliament and are subject to disallowance (s 4B). Trustees therefore must confirm the current threshold in force before deciding whether an AG application is available, since the Governor in Council can change the boundaries.

Strict treatment of anonymous/fundraising proceeds: Section 3(2) conclusively presumes proceeds of indistinguishable collections and many fundraising activities are from donors who cannot be identified, without advertisement or inquiry. For other types of gifts, the court may nonetheless treat property as from unidentified donors if returning property would be unreasonable (s 3(3)). Trustees who handle box collections or general fundraising should understand the statutory presumption and the limitations it imposes on donor recovery and the need to plan schemes accordingly. The 12-month claim window in s 3(4)(b) is a hard timeframe for donors to seek recovery once a scheme is made.

Limited safe-harbour conditions: The protections from breach-of-trust liability for trustees acting on AG-sanctioned schemes or AG opinions are limited. For example, s 5(3) treats a trustee acting on the AG's opinion as having acted in accordance with the trust unless the trustee knew or had reasonable cause to suspect the opinion was given in ignorance of material facts or the court’s decision has been obtained or proceedings are pending. Trustees must therefore carry out reasonable due diligence to ensure material facts were disclosed before relying on AG advice.

Commission cap and other charges in common funds: Trustees may deduct up to 5% of annual income as commission for administration under s 7B(5)-(7), and no other charges are allowed except as permitted by the trust instrument. Trustees should ensure that any fees or charges levied in a common fund conform to this cap and that trust instruments or constituent documents permit the arrangement. Failure to comply could expose trustees to challenge despite the general liability shield in s 7H(4) being contingent on following AG approval or court order.

Compelled answers and admissibility nuance: Section 10(3) removes a right to refuse to answer on self-incrimination grounds but provides that, where a person claims before answering that an answer might tend to incriminate, neither the question nor the answer is admissible in criminal proceedings except those under the Part or perjury proceedings. That creates a use immunity but not absolute immunity from prosecution based on other evidence. Practitioners should be alert to the narrower uses of compelled testimony and counsel cautious engagement where criminal exposure is possible.

Cost exposure from inquiries: Section 15 allows the Attorney-General to determine inquiry costs and seek recovery from trustees, order payment from charity funds, or enforce security given at the time of application under s 9(2)(b). Trustees who press for inquiries or who are subject to inquiries risk having costs allocated to them or to the charity. Where an applicant for an inquiry has been required to give security, that security may be applied to the costs (s 9(2)(b); s 15(1)(c)). This creates a financial risk for trustees and applicants.

High criminal penalties for document interference: The maximum penalties for concealing, destroying or removing documents under s 16 are substantial (up to five years’ imprisonment). Persons dealing with charity records should ensure rigorous document management and legal advice before any destruction or transfer of documents relevant to an inquiry.

Schedule-form declaration required to fund government-connected entities: Section 7K(3) makes the ability to provide funds to eligible entities with a government connection conditional on having a declaration in the Schedule form in force. Trustees may not rely on s 7K until they execute the Schedule-form declaration. The Schedule also instructs trustees to have regard to tax consequences. Absent the declaration, the power does not apply.

Regulatory detail sits in regulations and fees: Section 7 authorises regulations to prescribe forms and fees and expressly permits sliding-scale fee structures. Much of the procedural detail, including fees and forms for AG applications and Part IA approvals, will therefore be in subordinate legislation not contained in the Act text. Trustees and advisers should consult the regulations before applying.

Parliamentary oversight of threshold changes: Orders increasing monetary limits are subject to table and disallowance procedure (s 4B). That creates a political risk to reliance on elevated thresholds if Parliament disallows an Order. Trustees should verify whether an Order has completed the disallowance window.

No litigation record in the provided text: The Act text does not supply any case law interpreting the provisions. Do not assume settled judicial interpretation exists for key ambiguities; practical application may still be developing.

Determine applicability and thresholds at the outset: Before taking an AG route under s 4 or s 7F, trustees must determine whether the corpus meets the eligible property thresholds in s 1A. Confirm whether any Order under s 4A has altered the $500,000/$50,000 benchmarks and whether the Order has survived the parliamentary disallowance period (s 4B). If the property qualifies as eligible, trustees may choose the administrative AG pathway; otherwise court application remains necessary.

Prepare and lodge properly documented written applications: Applications to the Attorney-General under s 4, s 5 or s 7F must be in writing and accompanied by any prescribed fee (s 4(1), s 5(1), s 7F(2)(c)). Regulations under s 7 may prescribe forms and sliding-scale fees. Applications should specify the property or class of trusts (s 7D(2), s 7F(2)(b)) and be supported by full factual disclosure to avoid the trustee later being found to have relied on advice given in ignorance of material facts (s 5(3)).

Conduct reasonable inquiries and advertise where required for donor claims: Where property might be treated as given by unidentified donors, trustees should follow s 3: for box collections and general fundraising proceeds the statute creates a conclusive presumption (s 3(2)); for other gifts trustees should undertake reasonable steps to identify donors and document inquiries because s 3(3) permits the court to treat property as from unidentified donors only where it appears unreasonable to locate donors. If the trustees propose a scheme for cy près application, the scheme must specify total amounts and provide for claimant recovery within 12 months (s 3(4)(a)-(b)). Keep records of advertisements and inquiries to support any later reliance on the statutory presumption or a s 3(3) application.

When using Part IA (common funds), comply with distribution, deduction and governance rules: Trustees operating an investment common fund must distribute income periodically with regard to participation (s 7B(3)), may add income to capital or create reserves (s 7B(4)), and may deduct up to 5% of annual income as commission (s 7B(5)-(6)). Any other charges require trust-instrument authority (s 7B(7)). Ensure that AG approvals or court Orders under Part IA are followed precisely and that trust instruments are reconciled with common fund rules. If relying on AG approval for the liability shield, keep a record of the approval and its conditions (s 7H(2)-(4)).

Execute the Schedule declaration where distributions to government-connected entities are intended: To apply s 7K, trustees must have in force a declaration in the Schedule form (s 7K(3); Sch). The Schedule requires trustees to consider income tax consequences; obtain tax advice and ensure the declaration is executed as a deed. Maintain evidence of consideration of the factors in s 7K(7) regarding the extent of government connection.

Respond to information requirements and inquiries promptly and accurately: If the Attorney-General issues a written requirement under s 9A, it must (i) identify the information required, (ii) specify by when the requirement must be complied with (not less than one month) and (iii) specify the form for giving the information (s 9A(2)). Failure to comply without reasonable excuse is an offence with a penalty of 60 penalty units (s 9B). Provide complete, timely and documented responses and consult legal counsel where questions of privilege, confidentiality or self-incrimination might arise. Where an inspector requests documents, do not destroy, conceal or remove them; s 16 prescribes grave penalties for such acts.

Maintain and make available examination records: If an inspection and examination occur, inspectors will record the examination and provide the examinee a chance to sign (s 11). A signed copy must be provided free of charge on request (s 11(6)). Keep copies of records and transcripts, and ensure internal processes are in place to handle such requests and to preserve chain of custody for documents.

Manage costs risk: Be aware that the Attorney-General may determine inquiry costs and seek recovery from trustees, executors or the charity (s 15). If an inquiry is likely, consider securing funds or insurances and comply with any security requirements for applicants under s 9(2)(b). Where seeking an AG pathway, assess upfront the fee implications under regulations and the likelihood of the Attorney-General directing costs to the charity.

Use legal and tax advice when seeking AG opinions or approvals: Given the protections for trustees acting on AG opinions or approvals (s 5(3), s 4(5), s 7H(4)) are contingent on full disclosure and lack of ignorance of material facts, ensure comprehensive factual disclosure in any application and seek independent legal and tax advice. For Part IB issues (s 7K), seek tax advice regarding DGR status and income tax effects before executing the Schedule declaration.

Document governance of investment common funds: If establishing common funds, adopt written rules on valuation, periodic distribution, how participation is measured, rules on bringing in and withdrawing property (s 7B(2)-(3)), commissions and any permitted additional charges (s 7B(5)-(7)). Keep clear accounts showing commission calculations to withstand inquiries.

Track statutory and regulatory changes: Because Orders under s 4A and regulations under s 7 may change operational parameters (fees, forms, monetary thresholds), trustees should maintain a compliance calendar and periodically review government Gazette notices and subordinate legislation. Confirm whether an Order altering monetary limits has been disallowed by Parliament within the disallowance window (s 4B).

Preserve documents and records: Given the criminal penalties in s 16 for interfering with documents, adopt preservation policies for records related to trusts and charities. When transferring or disposing of documents, obtain legal advice to ensure compliance with retention obligations and to avoid inadvertent contravention.

Engage with the court when appropriate: Even where AG approval may be available, court proceedings under s 7D remain an option and may be preferable where legal certainty, precedent or final judicial determination is required. The court can grant Orders under s 7D and exercise charity jurisdiction including trustee removal under s 13.

In all steps, maintain contemporaneous, transparent records of decisions, disclosures to the Attorney-General or inspectors, and the factual basis for any reliance on statutory protections. That documentation is the practical foundation for the liability shields and for defending against any later challenge or application for costs under s 15.