Church of England Diocesan Trustees and Lands Act 1918

The Act operates around several interlocking legal concepts. Corporation by statute is the central architectural feature: each body of trustees is a creature of the Act, not of general incorporation law. They have perpetual succession and a common seal (section 6), can sue and be sued, and continue despite changes in membership. This contrasts with the earlier incorporation under the Associations Incorporation Act 1895, which the Act expressly dissolves (section 2). The dissolution is retroactively validated for all prior deeds and contracts, so the change of legal form does not disrupt past transactions. Trusts over land are another key concept. The trustees hold real and personal property subject to any trusts declared by deed, will, or synod statute. Section 13 is an explicit statutory override of those trusts for the two Bunbury lots, empowering the Bunbury trustees to sell, mortgage, or lease the land freed from any existing trust obligations. The proceeds must then be applied for the permitted purposes (church building, minister’s residence, associated buildings, maintenance, repair, or cathedral endowment). This creates a statutory power to vary beneficial interests, which would otherwise require either a variation of trust or a court order. Powers of management are derived from two earlier Acts. The 1888 Act (as amended by section 7 of this Act) gives trustees the power to demise lands, and now specifically to grant building or repairing leases in possession or reversion for any term, with or without an option of purchase, and to redeem mortgages. The 1914 Act confers powers over Crown-granted lands, including the ability to sell, mortgage, or lease such lands subject to any applicable synod statutes. Synod governance qualifies all these powers: the trustees exercise their powers “subject in all respects to the Statutes, orders, directions, and regulations of Synod” (section 8). This means the synod can restrict or direct the trustees’ actions, but the Act gives the trustees the statutory capacity to act. Priority of third-party protection is another concept. Section 14 provides that a purchaser, mortgagee, or lessee of the Bunbury lots need not inquire into the regularity of the trustee’s action or the application of money, and is not affected by notice of irregularity. This reduces transaction costs for counterparties but also reduces the accountability check on trustees.

The Act directly affects four classes of persons. First, the trustees themselves: the members of the Bunbury Diocesan Trustees, the Kalgoorlie Diocesan Trustees, and the future Trustees of the Northern Diocese (now North West Australia) become statutory corporations with defined powers and duties. They are the primary duty-bearers for holding, managing, and dealing with church properties in their respective dioceses. The Perth Diocesan Trustees are affected by the extension of their powers (section 7) and by the transfer of some properties to the new trustees (section 12). Second, the synods of the four dioceses: each synod can pass statutes that direct or constrain the trustees, and the synod’s consent is required for the exercise of the special powers in section 13 (subsection (1): “with the consent and subject to any statute of the Synod”). Synods also elect or appoint the trustees under their own statutes. Third, third parties dealing with the trustees: purchasers, mortgagees, and lessees of church lands (particularly the Bunbury lots) benefit from section 14’s protection from inquiry. This means they can transact without legal risk that a breach of trust or synod direction might later be used to challenge their title. It lowers their due diligence costs but also may reduce the price they pay for uncertainty. Fourth, beneficiaries of the trusts attached to the Bunbury lots (building lots 221 and 298) are affected because the Act extinguishes their equitable interests in those specific lands and substitutes a statutory right to have the net proceeds applied to the specified objects: building a church and minister’s residence, maintaining them, or endowing the cathedral. These beneficiaries are likely the congregation or the broader Anglican community in Bunbury, but the Act gives them no direct enforcement mechanism against the trustees beyond what general trust law or synod discipline might provide. The Land Titles Office and the Registrar of Deeds are affected because section 11 requires the change of name of the Perth trustees to be registered on certificates of title and other documents free of charge. The Crown is indirectly affected because the 1914 Act’s provisions for Crown-granted lands continue to apply. Finally, the Associations Incorporation Act 1987 (and its predecessor 1895 Act) are no longer relevant for these trustees, since the Act creates statutory corporations outside that regime.

The Act imposes few explicit duties; most are imported from the underlying 1888 and 1914 Acts and from general trust law. The trustees’ primary duty is to hold and manage property in accordance with any trusts affecting it. Where there is a specific statutory direction, as in section 13(2), the trustees must apply the net proceeds of sale, mortgage, or lease of the two Bunbury lots for the stated purposes: building a church and minister’s residence, maintaining those buildings, or endowing the cathedral. This is a mandatory application, not discretionary, though the trustees have some approval power over the allocation (“as the Bunbury Diocesan Trustees may approve and direct”). If they use the proceeds for any other purpose, they would likely be in breach of statutory duty. The trustees also have a duty to exercise their powers subject to the statutes, orders, directions, and regulations of the synod of their diocese (sections 7(b), 8, 10). This subordination to synod means the trustees cannot act independently of synod policy; if synod passes a statute limiting how land may be sold, the trustees must follow it. The trustees’ rights include all the powers of a corporation: perpetual succession, a common seal, the capacity to sue and be sued, and to hold real and personal property. They have the power to sell, mortgage, and lease land (including with options of purchase) as conferred by the 1888 Act (as amended) and the 1914 Act. For the Perth Diocesan Trustees, section 7(a) adds a right to mortgage or charge land expressly for the purpose of redeeming any existing mortgage or charge. For the Bunbury trustees, section 13 grants a right to sell, mortgage, or lease the two lots freed from any trusts. Section 14 gives purchasers, mortgagees, and lessees a right to rely on the trustees’ actions without inquiring into regularity. This is a substantive right: it protects their title even if the trustees acted irregularly, so long as the counterparty was not on actual notice. The trustees have a right to have the change of name noted on certificates of title free of charge (section 11). The Act does not impose any positive duty on the trustees to account, but that duty likely arises from synod statutes or the general law of trusts.

The Act contains no express penalty provisions. Enforcement of the trustees’ duties therefore falls to the general law and to the synod’s internal governance. Breach of trust by the trustees would be actionable by the beneficiaries (such as the Anglican church or the specific trust beneficiaries) in the Supreme Court of Western Australia. For the Bunbury lots, the statutory direction in section 13(2) creates a public duty; if the trustees misapply proceeds, the state Attorney-General might theoretically have standing to enforce a charitable trust, or the synod could seek an injunction. Synod discipline is the primary enforcement mechanism: the trustees are subject to synod statutes and can be removed or directed by synod resolution. If a trustee acts outside the scope of the Act, the transaction could be void or voidable. However, section 14 protects third parties, so the loss would fall on the trustees personally or on the trust fund, but not on the innocent purchaser. This creates a moral hazard: the trustees have broad powers and the counterparty has no incentive to police them. The only potential penalty is personal liability for the trustees if they act in breach of trust or without synod consent. Under general law, trustees who misapply trust property are liable to restore the trust fund. The Act does not cap that liability. For the Northern Diocese trustees, who have not yet been elected, no enforcement is relevant until they are constituted. The dissolution of the earlier incorporation under the 1895 Act (section 2) includes a validation clause that saves prior acts, which could be seen as a form of retrospective cure that prevents any claim that those prior trustees lacked capacity. One could characterise this as a statutory limitation on enforcement against those earlier transactions. Overall, the enforcement regime is light and relies on internal church governance and general trust litigation rather than on state regulatory machinery.

The Act does not operate in isolation; it amends, references, and is affected by several other Western Australian statutes. Anglican Church of Australia (Diocesan Trustees) Act 1888 (52 Vict. No. 2) is the foundational Act for the Perth trustees. Section 7 of the 1918 Act amends the 1888 Act by inserting a new power to mortgage land to redeem existing charges, and expands the leasing power to include building leases with options to purchase. The 1888 Act, as amended, is then applied to the new trustee bodies by section 8, so that the Bunbury, Kalgoorlie, and Northern trustees have the same powers as the Perth trustees, subject to their own synod statutes. Anglican Church of Australia Lands Act 1914 is applied by section 10, giving the new trustees powers over Crown-granted lands. The 1914 Act deals with lands granted for church purposes, including the power to sell, mortgage, or lease them. The 1918 Act makes that Act applicable to the new dioceses subject to any synod statutes. Transfer of Land Act 1893 and Registration of Deeds Act 1856 are relevant because section 11 requires the change of name of the Perth trustees to be registered under both Acts, and the Land Information Authority Act 2006 amended the 1918 Act to update registration references. Associations Incorporation Act 1895 (now repealed by the Associations Incorporation Act 1987) was the vehicle for the original incorporation of the Bunbury and Kalgoorlie trustees, which section 2 dissolves. The validation provision ensures that those dissolved corporations’ prior acts remain effective. This is relevant to anyone who dealt with those trustees before 1918. Anglican Church of Australia Act 1976 changed the name of the church from “Church of England” to “Anglican Church of Australia”. Section 7 of that Act amended the short title of this Act and changed statutory references to the church’s name. The 1918 Act’s preamble and sections still refer to “Church of England” due to context, but the notes indicate that references should now be read as to the Anglican Church. Anglican Church of Australia (Diocese of North West Australia) Act 1961 provides that references to “the Northern Diocese” in any law are to be read as references to the Diocese of North West Australia. This clarifies the identity of the third new diocese. Local government laws are affected by the 1996 amendment: section 13’s reference to the “local government district of Bunbury” was updated to reflect the change from “municipal district” to “local government district”. Reprints Act 1984 governs the compilation of the reprint. Section 9 of the 1918 Act was omitted under that Act because it was spent. The interaction with general trust law is implicit: the powers granted are in addition to, not in substitution for, the ordinary powers of trustees, but they may override the terms of particular trusts (as in section 13). The protection provision in section 14 may also limit the application of the rule that a purchaser from a trustee is bound to inquire into the propriety of the sale.

The Act, originally cited as the Church of England Diocesan Trustees and Lands Act 1918 (assented 24 December 1918), has been amended by four subsequent instruments. The compilation table shows the following amendments. No. 56 of 1956 (Church of England Diocesan Trustees and Lands Act Amendment Act 1956) amended section 13, though the reprint does not detail the specific changes. No. 121 of 1976 (Anglican Church of Australia Act 1976) made two amendments: section 1’s short title was changed (the original short title was updated to reflect the church’s new name), and section 10 was amended to update the reference from the Church of England Lands Act 1914 to the Anglican Church of Australia Lands Act 1914. No. 14 of 1996 (Local Government (Consequential Amendments) Act 1996) amended section 13 to replace “municipal district” with “local government district”, reflecting local government reform. No. 60 of 2006 (Land Information Authority Act 2006) amended section 11 to update references from the Transfer of Land Act 1893 and the Registration of Deeds Act 1856 (the previous references were to those Acts as then current, but the amendment aligned the text with the new Land Information Authority). The Act has been reprinted twice: first as at 3 May 2002, and then as at 4 September 2015 (this reprint). The compilation notes that section 9 was omitted under the Reprints Act 1984 because it was obsolete; its content is not reproduced. The amendment history tracks the evolution of the church’s name and state land administration. Notably, the 1976 amendment did not commence until 24 August 1981, a delay of nearly five years, likely because it depended on the commencement of the Anglican Church of Australia Act 1976 itself. The 1996 amendment commenced on 1 July 1996, aligned with the local government restructure. The 2006 amendment commenced on 1 January 2007. No further amendments have been made since 2006, so the Act as at 2015 is current unless there are later unpublished changes. The lack of recent amendments suggests the Act has been stable and perhaps little used.

The source material (the reprint as at 4 September 2015) does not record any litigation history. There are no reported cases cited in the text, in the notes, or in the compilation table. The preamble mentions that “doubts have arisen as to the legality of the incorporation of such trustees under the said Act” (the Associations Incorporation Act 1895), which suggests that before 1918 there may have been legal uncertainty or threatened litigation. The Act was Parliament’s legislative response to cure those doubts. The dissolution and validation provision in section 2 was likely designed to head off any court challenge. Section 12’s retrospective validation of property transfers also indicates a practical concern about defective titles. However, there is no indication that any actual litigation occurred or that the Act itself has been judicially considered. This is consistent with the Act’s narrow scope: it is a private or local Act that mainly affects internal church property arrangements. If there have been disputes in the Supreme Court or District Court about the trustees’ powers, they are not recorded in the reprint. The protection for purchasers in section 14 may have prevented litigation by cutting off any claims by beneficiaries against third parties. The absence of reported cases means the Act’s interpretation is untested. For example, the interaction between the trustees’ power to sell free from trusts (section 13) and the requirement that proceeds be applied for specified objects has never been judicially clarified. The meaning of “net moneys” and what constitutes “maintenance and repair” remain open. Similarly, the requirement that the exercise of the power be “with the consent and subject to any statute of the Synod” has not been tested as to whether the consent must be express or can be implied. The change of name in section 11 and its effect on existing contracts and securities has not been litigated. Those advising the trustees or dealing with them should be aware that the Act provides a statutory framework but that its application in contested circumstances is uncertain.

Several aspects of the Act can trap the unwary. First, the conditional future incorporation of the Northern Diocese trustees (section 5) only takes effect when that diocese is organised with a synod and trustees are elected. As at 2015, that event had presumably occurred; the Diocese of North West Australia was established and has trustees. But the Act’s wording is contingent. Anyone dealing with the northern diocese must verify that the condition has been satisfied and that the trustees are properly appointed under the synod’s statutes. Second, the interplay between sections 8 and 10: section 8 applies the 1888 Act to the new trustees, but section 10 applies the 1914 Act only in respect of Crown-granted lands. Not all church lands are Crown grants; some may have been purchased or donated. The 1914 Act may not apply to those lands, leaving the trustees with only the 1888 Act powers (as amended) unless extended by other legislation. This creates a dual regime. Third, the Bunbury lots power (section 13) overrides all trusts. The Act does not require the consent of the trust beneficiaries or the original donors. If the lots were given for a specific purpose (e.g., a school), the trustees can still sell them free from that trust and use the money for a church building, which may disappoint the original purpose. The Act gives no right of objection or compensation to beneficiaries. Fourth, the application of net moneys (section 13(2)) is not tied to a specific time; the trustees could hold the proceeds indefinitely before building. There is no obligation to apply them within a reasonable time, creating a risk of idle funds. Fifth, the protection for purchasers (section 14) is absolute only if the purchaser has no notice. But what constitutes “notice”? The Act does not define it. If a purchaser knows that the synod has not consented, does that destroy protection? The courts would have to decide, but the wording suggests protection is lost only if the purchaser actually knew the transaction was “irregular, unnecessary, or improper”. This places a premium on the purchaser’s state of knowledge. Sixth, the change of name in section 11 might not automatically bind all instruments executed before the change without formal novation. The section deems references to the old name as references to the new one, but that is a statutory interpretation rule; it does not retroactively change the name on pre-1918 contracts. Seventh, the omission of section 9 under the Reprints Act means that any rights or obligations created by that section are lost. It is not known what section 9 said, but it was likely transitional or spent. Eighth, the 1976 amendment’s delayed commencement means that between 1918 and 1981, references to the Church of England remained unchanged in other Acts. Those relying on the 1918 Act during that period should have been using the correct name. Ninth, synod statutes change over time. The trustees’ powers are subject to synod statutes, which may be amended. A third party cannot assume that the trustees have the same powers today as they had in 1918; they must check current synod legislation. The Act does not require synod statutes to be publicly registered.

Compliance with this Act is relevant to three distinct groups: the trustees themselves, the synod officers who oversee them, and third parties dealing with church property. For the trustees, the primary compliance obligation is to ensure that all property dealings are within the powers granted by the 1888 and 1914 Acts as applied, and are not contrary to any synod statute. The trustees should maintain a register of all trust properties and the applicable trust instruments. Before exercising their powers under section 7 (extended powers) or section 13 (Bunbury lots), they must obtain the consent of the synod (for section 13) or follow any relevant synod statute. The consent should be evidenced in writing, preferably by a synod resolution. For the Bunbury lots, the trustees must also ensure that the net proceeds of any sale, mortgage, or lease are applied exclusively for the stated objects: building a church and minister’s residence, maintaining them, or endowing the cathedral. They should keep separate accounts for these proceeds and audit them. The change of name under section 11 required registration; if not already done, the current Perth trustees should confirm that all certificates of title have been updated. The trustees under the new dioceses should ensure their corporate name is correctly stated on all documents and that their common seal is used properly. For synod officers (e.g., the registrar or chancellor), the Act imposes a duty to ensure that the trustees are properly appointed in accordance with synod statutes and that any statutes restricting the trustees’ powers are up to date and consistent with the Act. The synod should review its statutes to ensure they do not inadvertently conflict with the powers granted by the Act, and if they intend to restrict those powers, they must pass a statute doing so. The synod should also document its consent to any section 13 transactions. For third parties (purchasers, mortgagees, lessees), compliance is largely passive: they are protected by section 14 and need not inquire into the trustees’ compliance with synod statutes or trusts. However, a prudent third party might still request a certificate from the trustees confirming that synod consent has been obtained and that the transaction is in accordance with the Act. This would reduce the risk of later litigation based on actual notice. The third party should also verify that the trustees are the correct corporate body (e.g., “The Bunbury Diocesan Trustees”, not the old unincorporated association) and that they hold good title under the Transfer of Land Act. If the land is Torrens title, the third party can rely on the register, but the Act does not override the indefeasibility provisions. Finally, legal practitioners advising on church property should ensure that any transaction involving the Bunbury lots expressly refers to section 13 to avoid any implication that the trustees are acting beyond power. They should also check whether the property is Crown-granted, as the 1914 Act applies additional requirements. The Act itself is old and unlikely to be amended again, but the underlying synod statutes may change frequently.