Perth Anglican Church of Australia Collegiate School Act 1885

The Perth Anglican Church of Australia Collegiate School Act 1885 is a short private Act that performs two principal mechanical operations. First, it dissolves the body corporate known as “The Governors of the Perth Church of England Collegiate School,” which had been created by an 1865 Ordinance (29 Vict. No. 12). The preamble records that this corporation “has not been able to carry out the objects for which it was incorporated,” so dissolution is presented as the remedy. Second, the Act vests the land and buildings originally held by that corporation , specifically Perth allotments H 7 and H 1 (totalling about 1.8 acres), together with any other lands then belonging to the dissolved body , in “The Standing Committee of the Synod of the West Australian Branch of the Church of England.” That vesting is on trust: the Committee must hold and apply the property “for such educational purposes as such Committee shall consider to be most nearly in accordance with the objects for which the said School was originally established.” Those original objects are set out in the 1865 Ordinance and included teaching Holy Scriptures in the original tongues, the principles of the Christian religion, classics, mathematics, and any language, art, science, or literature deemed to constitute a sound and liberal education. The Act also confers ancillary powers on the Committee. It may make rules and regulations for the management of any school or college it might later establish, and may amend or repeal those rules from time to time. It may mortgage the vested lands in fee simple or for a term of years, but only to raise funds not exceeding £1,400 (in 1885 currency), and only for the purpose of reimbursing the Bishop of Perth, Henry Hutton Parry, for moneys he had already expended on building, repairing, and improving the property. The mortgage may include a power of sale and leasing in case of default. Additionally, the Committee may lease the land or any part of it for terms not exceeding seven years, on whatever rent and conditions it thinks fit. Section 8 reserves all Crown, corporate, and third-party rights not specifically mentioned in the Act. Two sections, 5 and 7, were deleted by a later private Act (the Church of England School Lands Act 1896). Section 9, which had apparently repealed the original 1865 Ordinance, is omitted under the Reprints Act 1984. Essentially, this Act is a targeted statutory mechanism to dissolve a failed educational corporation and transfer its property to a church committee with a narrow trust for education, while giving that committee limited borrowing and leasing powers to manage and improve the asset.

The Act relies on several distinct legal concepts. Body corporate dissolution is the foundational event: the 1865 Ordinance created the Governors as a corporation sole or aggregate (likely a body corporate with perpetual succession), and section 1 declares that entity dissolved from the date of the Act’s passage. This is not a winding up under modern corporations law but a statutory extinguishment. The dissolved body no longer holds property or capacity. Vesting on trust is the second core concept. The Act does not merely transfer title; it vests the land in the Standing Committee “on trust” to apply it for educational purposes that the Committee considers most nearly aligned with the school’s original objects. This creates a charitable trust, enforceable by the Attorney General or by persons with sufficient interest. The trust is not a discretionary power to spend the land for any purpose; it is a duty to use it for education consistent with the original collegiate school’s aims. The phrase “most nearly in accordance” introduces flexibility: if the exact original objects are impractical, the Committee may choose the closest feasible variant. Educational purposes are defined by reference to the 1865 Ordinance’s preamble: a classical and religious curriculum including scripture in original languages, Christian doctrine, classics, mathematics, and any other subjects that constitute a sound liberal education. That definition is static but open-ended. Management rules and regulations are a separate concept: the Committee may make internal governance rules for any school or college it establishes, and may amend or repeal them. This power is broad but must be exercised consistently with the trust. Mortgage is authorised as a specific borrowing mechanism. The Act creates a power to mortgage the land in fee simple or for a term of years, for up to £1,400, to repay the Bishop. The mortgage may include a power of sale and leasing on default, and the land is “freed and absolutely discharged from the trusts” upon mortgage. This means that once mortgaged, the lender takes the land free of the educational trust, though the Committee remains bound to apply the proceeds. Leasing is permitted for up to seven years on terms the Committee thinks fit. This is a relatively short maximum term, perhaps to prevent long-term alienation inconsistent with the trust. Crown rights reservation preserves any existing interests of the Crown, corporations, or other persons not mentioned in the Act. This prevents the Act from inadvertently extinguishing third-party rights such as easements, mineral rights, or reversionary interests. Finally, is a concept introduced by later cross-referenced legislation. The “Standing Committee” named in the Act was itself replaced by “The Perth Diocesan Trustees” under the Anglican Church of Australia (Diocesan Trustees) Act 1888, so the current trustee is that body, not the original committee.

The Act directly affects the dissolved corporation, the named committee (now the Perth Diocesan Trustees), and the Bishop of Perth who was owed reimbursement. The dissolved body, “The Governors of the Perth Church of England Collegiate School,” ceases to exist; any members or officers of that body lose their offices and any personal liability or benefit connected to the corporation’s property. The Standing Committee of the Synod of the West Australian Branch of the Church of England (as originally constituted) received the land and power; but that committee itself was superseded in 1888 by the Perth Diocesan Trustees, who now hold the legal title and exercise the powers under this Act. The current trustees are responsible for administering the land and ensuring that any school or educational use complies with the trust. The Bishop of Perth, Henry Hutton Parry, is a direct beneficiary of the mortgage power: the Act was designed to allow the Committee to raise up to £1,400 to repay him for money he had already spent on the property. Mortgagees who lend against the land under section 4 are affected: they receive a mortgage that frees the land from the educational trust, and they may enforce a power of sale or leasing on default. Lessees who take leases under section 6 are affected: they hold a term not exceeding seven years, with rent and covenants set by the Committee. The Act also affects the wider Anglican Church in Western Australia, as the land is held for church educational purposes. Former donors to the school are mentioned in the preamble as desiring the vesting; their wishes are given legal effect to the extent the trust must be applied “most nearly” to the original objects. The Crown is affected only to the extent that section 8 reserves its rights; the Act does not otherwise impact Crown land or prerogatives. Students and parents at any school established on the land are indirectly affected by the educational trust: the curriculum and management must align with the original objects. The local community in Perth may be affected because the land is held for educational rather than commercial or residential use. Given the small size of the allotments (1.8 acres in central Perth), the real-world impact is confined to a specific parcel. The Act does not create any general obligations for the public; it is a private Act dealing with a single asset.

The Act imposes a core duty on the standing committee (now the Perth Diocesan Trustees): to hold and apply the vested land and buildings for educational purposes that the committee considers most nearly in accordance with the original objects of the Perth Church of England Collegiate School. That duty is not a mere direction; the property is vested on trust. If the committee fails to apply the land for approved educational purposes, it may be in breach of trust and could face enforcement action by the Attorney General or other interested parties. The duty is ongoing and does not expire. The committee also has a duty to exercise its powers of management, mortgage, and leasing in a manner consistent with the trust. The Act does not specify any reporting obligations, nor does it require the committee to maintain a school on the land. It could, for example, lease the land to another educational institution that fulfils the objects, or it could use rental income to support educational activities elsewhere, provided the land itself remains applied to educational purposes most nearly aligned with the original objects.

The rights conferred on the committee are significant. It may make rules and regulations for the management of any school or college it establishes, and may amend or repeal them. This is a broad internal governance power, subject only to the trust and general law. It may mortgage the land in fee simple or for a term of years, for any sum up to £1,400, in order to raise money to repay the Bishop for his building expenditures. The mortgage may include a power of sale and a power of leasing in default. The committee may also lease the land (or part of it) for any term not exceeding seven years, on any rent and conditions it sees fit. These leasing and mortgaging rights are limited: the mortgage amount is capped at a fixed historical sum (which would now be of negligible value given inflation), and leases cannot exceed seven years. That short maximum term prevents long-term alienation without further statutory authority. The committee also has the right to give receipts for mortgage advances, which will discharge the borrower. On default, the mortgagee has the right to enforce sale or lease, and the land is freed from the trust in the mortgagee’s hands.

The Act also reserves rights of the Crown and other persons not specifically mentioned (section 8). Any third party with a pre-existing right, title, or interest in the land (such as an easement or lease) is unaffected unless that interest arises from the dissolved corporation or those claiming through it. The Bishop had a right to be reimbursed from the mortgage proceeds, but that right is not created by the Act; it is recognised in the preamble and the mortgage power is the mechanism to satisfy it.

The Act creates no criminal penalties, fines, or civil pecuniary penalties. Enforcement is primarily through the law of trusts. If the Perth Diocesan Trustees fail to apply the land for the specified educational purposes, they may be in breach of a charitable trust. Charitable trusts are enforceable by the Attorney General of Western Australia (acting as parens patriae) or by any person with a sufficient interest, such as a donor or beneficiary of the trust (though the class of beneficiaries is indefinite). The court could order the trustees to comply, remove them, or direct that the land be sold and the proceeds applied cy-près (i.e., to another charitable purpose as near as possible to the original objects). The Act itself does not provide a cy-près power; that would fall under general charitable trusts legislation (the Charitable Trusts Act 1962 (WA) or its successors). However, because the Act directs that the land be held for purposes “most nearly in accordance” with the original objects, it already incorporates a degree of flexibility that may reduce the need for cy-près application.

If the committee mortgages the land in excess of £1,400, that would likely be ultra vires and void as to the excess, and the trustees could be personally liable for breach of trust. Similarly, granting a lease for more than seven years would exceed the statutory power and could be invalid or voidable. The mortgagee or lessee might not get good title, and the committee could face claims for damages. The Act does not prescribe any time limits for enforcement. Because this is a 19th century private Act, the practical risk of litigation is low unless the land becomes the subject of a development dispute or a claim that the trust is being ignored.

There is no provision for audit, inspection, or reporting to any government body. Enforcement relies on the vigilance of church authorities or the Attorney General. Given the small value of the land and the age of the Act, active enforcement is improbable. Nonetheless, lawyers advising on transactions involving the land must confirm that the trust is being observed and that any borrowing or leasing stays within the Act’s limits.

This Act is not self-contained; it operates alongside several other statutes, both historical and current. The 1865 Ordinance (29 Vict. No. 12) that created the original corporation is effectively spent, as it was repealed by section 9 of this Act (now omitted but formerly in force). The Standing Committee itself was originally incorporated by 38 Vict. No. 18 (1874), but that Act was repealed by 52 Vict. No. 8 (1888) , the Anglican Church of Australia (Diocesan Trustees) Act 1888. Section 5 of the 1888 Act expressly replaces “the Standing Committee” in this 1885 Act with “The Perth Diocesan Trustees.” So any reference to the Standing Committee must now be read as a reference to the Perth Diocesan Trustees. That substitution is binding and means the current trustee body is the successor in law for all purposes of this Act.

The Anglican Church of Australia Act 1976 further interacts by changing all references to “Church of England” or “Church of England in Western Australia” in State laws to “Anglican Church of Australia,” unless the context otherwise requires. That amendment directly affects the reading of the Act’s preamble and body, though the short title was amended in 1976 to reflect the new name. The Act’s references to “Church of England” should now be construed as “Anglican Church of Australia” for most purposes, though the note in the reprint suggests some references may be left unchanged due to context.

The Decimal Currency Act 1965 means the £1,400 limit is of historical interest only; it would now be read as a reference to $2,800 if converted, but the Act has not been amended to update the amount. Practically, the limit is so low that any modern mortgage would far exceed it, rendering the mortgage power essentially obsolete. A mortgage for more than £1,400 would need other legislative or trust law authority. The Church of England School Lands Act 1896 (now known as the Anglican Church of Australia School Lands Act 1896) deleted sections 5 and 7 of this Act, which presumably contained other provisions (possibly dealing with the application of proceeds or further details). Those deletions may affect the completeness of the scheme, but the remaining sections are still operable.

The Act interacts with general property law (the Transfer of Land Act 1893 and the Property Law Act 1969), especially regarding mortgages and leases. The mortgage power in section 4 specifies that the land may be assured in fee simple or for a term of years, with a power of sale. That may be integrated with Torrens system requirements for registration. The lease power is limited to seven years, which under some property law regimes may not require registration. Trustees should also comply with the Trustees Act 1962, which implies duties of care and investment, but the specific powers in this Act override general trustee provisions to the extent of any inconsistency. The Act is a private Act and prevails over general legislation for its subject matter, but only within its scope. Crown rights are reserved, preserving any prerogative interests.

The Act was originally enacted in 1885 as an untitled private Act (49 Vict. No. 19). It received royal assent on 24 September 1885 and commenced on the same day. The first substantive amendment came via the Church of England School Lands Act 1896 (60 Vict. Private Act), which deleted sections 5 and 7. Those sections are no longer part of the Act, and their content is unknown from the text alone. In 1966, the Statute Law Revision (Short Titles) Act 1966 (No. 81 of 1966) inserted a short title: the Act became the “Perth Church of England Collegiate School Act 1885.” Before that, the Act had no official short title. In 1976, the Anglican Church of Australia Act 1976 (No. 121 of 1976) changed the short title to the current “Perth Anglican Church of Australia Collegiate School Act 1885,” reflecting the denomination’s name change. Section 7 of that 1976 Act also provides that references to “Church of England” in any State law shall be construed as references to “Anglican Church of Australia,” which operates as a direct amendment to this Act for most purposes. The reprint notes indicate that section 9 was omitted under the Reprints Act 1984, section 7(4)(f), which allows omission of spent or redundant provisions. Section 9 originally repealed the 1865 Ordinance; that repeal has been given effect and is no longer needed in the text. The compilation table lists reprints in 1987, 2002, and 2015, each consolidating amendments. The Act now comprises sections 1, 2, 3, 4, 6, 8, and 10, with notes explaining the replacement of the Standing Committee and the change in currency. No further amendments have been made since 1976. The Act remains in force as an operable statute, though many of its provisions are likely spent or practically limited. The mortgage limit has never been updated for inflation, and the land in question may have been sold or developed under other powers. Lawyers should verify whether the Perth Diocesan Trustees still hold the land and whether the trust is still being performed.

The source text does not mention any cases or judicial proceedings involving this Act. Given that it is a narrow private Act dealing with a single parcel of land and a dissolved corporation, reported litigation is unlikely. The Act may have been referred to in property title searches but not in appellate rulings. The absence of litigation history suggests that the trustees have managed the land without dispute, or that any disputes were resolved privately. That is not uncommon for 19th century private Acts: they often operate quietly for decades. If any litigation did occur, it would likely concern the interpretation of the trust purposes or the validity of a particular mortgage or lease. However, because the Act’s mortgage limit is now obsolete, any mortgage exceeding £1,400 would need other authority, and that could be a source of dispute if a challenge were brought. The Act has not been amended to update the limit, so it remains a potential trap. No cases are recorded in the reprint notes. Researchers should search the West Australian Supreme Court records and the State’s unreported judgments for any mention, but for practical purposes the litigation history is nil. This lack of judicial interpretation means that ambiguous phrases in the Act , such as “most nearly in accordance with the objects” , have not been authoritatively construed. Any legal advice on the Act’s application must therefore rely on the plain text and general trust law principles.

Several traps await practitioners who encounter this Act. First, the mortgage power is capped at £1,400, a sum fixed in 1885. This amount has not been updated and is now trivial. Any attempt to mortgage the land for a larger sum, even for genuine educational purposes, is likely beyond the statutory power and could be ultra vires. The mortgagee would not get good title free of the trust, and the trustees could be personally liable. If the trustees want to raise significant funds, they may need to rely on general trustee powers under the Trustees Act 1962 or seek a court order. The mortgage limit is an historical anachronism but remains legally binding.

Second, the lease power is limited to seven years. Any lease exceeding that term is invalid under the Act. That may catch commercial arrangements where a longer term is desired. The trust does not permit longer leases unless authorised by another statute.

Third, the Act’s description of the land as “allotments H 7 and H 1” may not match modern cadastral boundaries. Subdivisions, road widenings, or amalgamations could have occurred. The current legal description must be traced through title records. The trust attaches only to those original allotments and any other lands then belonging to the dissolved corporation. If the trustees have acquired or disposed of other lands, those are not covered by this Act.

Fourth, the Standing Committee named in the Act no longer exists. The current trustee is the Perth Diocesan Trustees, but practitioners must confirm that the substitution under the 1888 Act is fully operative and that no further changes have occurred. The 1976 Act changed the church’s name, but does not affect the identity of the trustees. A failure to refer to the correct body could lead to invalid transactions.

Fifth, the trust requires the land to be applied to educational purposes “most nearly in accordance” with the 1865 objects. Those objects include teaching Holy Scriptures in original tongues and Christian principles. A purely secular educational institution might not satisfy the trust. If the land is used for general educational purposes that are entirely secular, a challenge could arise. The trustees must be able to demonstrate a nexus to the original school’s religious and classical curriculum.

Sixth, the Act does not specify what happens if the trustees cease to exist or if the land is no longer needed for education. There is no power to sell the land outright, only to mortgage or lease. Disposal of the land would require a private Act or a cy-près scheme under charitable trusts legislation. That could be a lengthy and costly process.

Compliance obligations under this Act apply primarily to the Perth Diocesan Trustees (as the current trustee) and secondarily to anyone dealing with the land. For the trustees, the first step is to confirm that the land described as Perth allotments H 7 and H 1 is still held by them. They should review the current certificate of title to ensure it reflects the vesting under the Act and any subsequent transfers or dealings. If the land has been subdivided or changed, the trustees must ensure the trust attaches to the correct parcels. The trustees must then demonstrate that the land is being applied for educational purposes that are, in their considered judgment, most nearly in accordance with the original objects of the Perth Church of England Collegiate School. That means the land’s use (whether as a school, a college, or otherwise) must have an educational character consistent with the teaching of scripture, Christianity, classics, mathematics, and liberal arts. If the land is leased to a third party for educational use, the lease must require the lessee to operate in a manner consistent with those objects. If the land is used for non-educational purposes (e.g., commercial rental to a non-educational tenant), the trustees may be in breach of trust. The trustees should document their reasoning for any decision about the land’s use, including how they considered the original objects.

If the trustees wish to borrow money against the land, they must ensure the total borrowing does not exceed £1,400. In practice, that limit is so low that borrowing under this Act is pointless. They would need to seek alternative authority, such as under the Trustees Act 1962 or via a court order. Any mortgage executed under section 4 must be strictly within the limit; otherwise the mortgagee may challenge its validity. The trustees should also ensure that mortgage documentation includes a power of sale and leasing in default as permitted by the Act, and that the lender understands the land is freed from the trust only in the mortgagee’s hands upon enforcement.

For leases, the term must not exceed seven years. Rent and covenants can be set freely. The trustees should ensure any lease is in writing and clearly states the term. If a longer lease is needed, the trustees must seek other legal authority or a statutory amendment.

The trustees must also comply with the current church governance structure. They should ensure that any rules and regulations for management of a school or college under section 3 are consistent with the trust and any diocesan policies. Those rules are internal and do not need government approval.