Roman Catholic Bishop of Broome Property Act 1957

The Act introduces and relies on several legal concepts that are critical for understanding its operation: corporation sole, vicar apostolic versus bishop, vesting of property without transfer, override of trusts, and statutory protection for third parties.

Corporation sole: This is an ancient common law concept adapted by statute. Under section 4, the officeholder (the Vicar Apostolic, now Bishop of Broome) is a single corporation: the natural person and the office are distinct for legal purposes, but the corporation has perpetual succession. When a Bishop dies or resigns, the corporation continues, with the successor automatically taking on the corporate identity. This allows the Bishop to hold property in a corporate name without needing a trust structure or a board of directors. The corporation sole holds property for the benefit of the diocese, but the Act does not create a separation of ownership from beneficial use; the Bishop as corporation sole effectively owns legal title, though likely subject to various ecclesiastical governance arrangements not in this Act. The concept eliminates the need for multiple trustees or a separate entity like a property trust. For third parties dealing with the Bishop, they deal with a single legal person, but must verify that the person they deal with is currently the officeholder (or an authorised attorney or acting Bishop under section 8). The Act does not require public notification of the identity of the current Bishop, creating a practical due diligence issue for purchasers and mortgagees who need to confirm authority.

Vicariate and Diocese: The Act originally concerned the “Roman Catholic Vicariate of the Kimberleys” - a missionary jurisdiction administered by a Vicar Apostolic (a titular bishop appointed by the Pope to lead a territory not yet a diocese). The 1970 amending Act (section 9) changed all references to the Diocese of Broome and the Bishop of Broome, reflecting the territory’s promotion from a vicariate to a diocese. This change is not merely titular: a diocese is a more established ecclesiastical jurisdiction with a residential bishop; the Bishop of Broome has ordinary jurisdiction, whereas a Vicar Apostolic exercises delegated papal authority. For property law purposes, the change means the officeholder now has the status of a diocesan bishop, which may affect his capacity under canon law to alienate property. The Act does not address any canon law conditions; it operates wholly within state law. The transition from vicariates to dioceses was a common pattern in Australia as the Catholic Church matured.

Vesting without transfer: Section 3 provides that from 23 September 1970 (the commencement of the amending Act), all property within the Vicariate automatically vests in the Bishop absolutely and indefeasibly, without any deed of assurance or transfer. This is a statutory vesting that overrides normal conveyancing requirements. It is subject to existing trusts, encumbrances, and dispositions. For land under the Torrens system, the Registrar of Titles is required under section 6 to register the vesting and note it on the certificate of title free of charge, but only on the application of the Bishop. Until such application, the registered proprietor on the title may still be the former holder (e.g., the Bishop of Perth). The automatic vesting operates in equity from the statutory date; legal registration is confirmatory. This creates a risk that third parties relying on an out-of-date title search may not know the true owner. However, the Act does not displace the Transfer of Land Act 1893’s protections for purchasers for value without notice; a transferee from the former registered proprietor after 1970 might obtain legal title, though the Bishop’s equitable interest would likely prevail if the transferee had notice. The Act does not impose a duty on the Bishop to register promptly, leaving him to bear the cost and effort of updating titles.

Override of trusts: Section 5(1) permits sale, mortgage, or lease of vested lands “subject to any express trust or condition against alienation”. This means the Act does not remove explicit prohibitions on alienation, but it does remove or disregard any other types of trusts or conditions. Subsection 5(2) clarifies that a trust expressed for the benefit of the Roman Catholic Church or the Vicariate is not an express trust or condition against alienation. This is a crucial distinction: many gifts of land to the Church were made for the “use and benefit of the Catholic Church in the Kimberleys” or similar words. Under the Act, such language does not prevent the Bishop from selling the land and using the proceeds elsewhere for Church purposes. The Act thus allows the Bishop to restructure the property portfolio, selling lands that are no longer needed (e.g., an underused church hall) and using the funds for new purposes (e.g., building a school). The only trusts that survive are those that explicitly say “this land shall not be sold” or “this land must remain as a church forever”. Such express conditions are likely rare, given the standard drafting of gifts to the Church. For practical purposes, the Bishop can treat most church land as ordinary real estate, subject only to any existing encumbrances (mortgages, leases) and the section 7 of the Roman Catholic Church Lands Act 1895 (which requires consent of the Bishop of Perth for dealings by other bishops - a provision that may be outdated given the creation of the diocese of Broome).

Statutory protection for third parties: Section 5(3) provides that no purchaser, mortgagee, or lessee of lands dealt with under section 5 is bound to inquire whether the power was “duly and regularly exercised”, or to see to the application of money, or to inquire into necessity, regularity, or propriety, and is not affected by notice that the dealing is irregular, unnecessary, or improper. This gives third parties statutory immunity from any internal church governance defects. For example, if the Bishop sells land without first obtaining the required consent from the Vatican or from his own finance council (canon law requirements), the purchaser still gets good title as against the Church. The effect is to make dealings with the Bishop essentially unimpeachable by anyone other than the Church itself (which may have internal remedies against the Bishop, but not against the purchaser). This provision significantly reduces the due diligence burden for buyers and lenders: they need not investigate whether the Bishop followed church procedures or canon law. They can rely on the Bishop’s signature as conclusive evidence of authority, unless they have actual knowledge of a breach. This is a strong form of protection that makes the Bishop’s property dealings commercially viable.

The Act primarily affects the Roman Catholic Church in the Kimberley region of Western Australia, specifically the Diocese of Broome. The Bishop of Broome (as the successor to the Vicar Apostolic) is the direct object of the Act: he is the corporation sole who holds all property and exercises the powers of sale, mortgage, and lease. The Act also affects other parties who transact with the Bishop in relation to church property: purchasers, mortgagees, lessees, and their legal advisers.

The Bishop of Broome as legal entity: The Bishop gains the benefit of perpetual succession: he does not need to re-register title upon appointment of a new Bishop, because the corporation sole continues. He also gains the benefit of being able to deal with property without needing to prove authority to third parties (the Act provides that authority). However, he also bears the compliance burden of being a corporation sole: he must maintain a common seal (section 4), execute documents properly, and ensure that any attorney appointed under section 7 is a priest of the Diocese. The Act does not impose any accounting or reporting obligations on the Bishop regarding property disposals. The Bishop can sell church land and use the proceeds for any purpose consistent with his office; there is no requirement that proceeds be applied to charity or reinvested in Church property. This gives the Bishop substantial discretion, subject to canon law and the trust of the faithful.

Other church entities: The Act effectively extinguished the property rights of three prior holders: the Bishop of Perth (who held two titles), the Bishop of Geraldton (four titles), and the Pious Society of Missions Incorporated of Broome (four titles). Those entities lost legal title to the lands listed in the First Schedule on 23 September 1970, and also lost any future property they might have acquired within the Vicariate after that date under the “all other property” provision of section 3. The Pious Society of Missions Incorporated (a missionary society) would have had its own property holding structure; the Act vested that property in the Bishop without any transfer of liabilities or obligations, other than existing trusts and encumbrances. The Act does not state whether the Bishop assumed any debts of the Pious Society. The Bishop of Perth and Geraldton were divested of land that may have been held for the benefit of the Kimberleys mission; the Act centralised control.

Third party purchasers, mortgagees, and lessees: These parties benefit from section 5(3) which protects them from any internal irregularities. They do not need to check the Bishop’s canonical authority, the existence of trust restrictions, or the application of proceeds. This reduces transaction costs and legal risk for outsiders dealing with church land. However, they still need to do standard due diligence: search the title to confirm the Bishop is registered as proprietor (or that the vesting has been registered), check for encumbrances, and confirm that any express trust or condition against alienation does not exist. Section 5(3) does not excuse them from having to discover an express trust or condition against alienation; it only excuses them from inquiring into the exercise of the power under section 5. If a parcel of land has an express trust or condition against alienation (e.g., a deed covenant that the land shall never be sold), section 5(1) says the Bishop may deal with the land subject to that trust or condition. That means the sale may still be possible, but the purchaser takes subject to it (or the condition may make the sale void). A prudent purchaser would need to ensure there is no such trust or condition. The Act does not require these trusts or conditions to be recorded on the land title; they might exist in a separate deed or will. This is a practical gap.

Legal profession: Solicitors and conveyancers advising the Bishop need to understand the Act and its interaction with the Transfer of Land Act 1893, the Roman Catholic Church Lands Act 1895, and the Second Schedule Acts overridden by section 5. They must advise on the need to register the vesting under section 6 if not already done. For transactions, they need to confirm that the Bishop is validly in office, that any attorney appointed under section 7 is a priest of the Diocese, and that the dealing does not violate any express trust or condition against alienation. For third party purchasers, they must advise on the reliance protections of section 5(3) and the residual risk from unregistered express conditions.

Registrar of Titles: The Registrar must register the vesting and note it on the title free of charge upon application by the Bishop. This is a ministerial act, but the Registrar presumably must satisfy that the application is proper. Since the Act vests all property automatically, the Registrar has no discretion to refuse registration, provided the application complies with the Transfer of Land Act 1893 and the Registration of Deeds Act 1856. The Act does not specify time limits, so the Bishop could delay registration indefinitely.

The broader public: The Act has no direct effect on the general public, but it affects the ability of the Catholic Church to alienate and develop land, which may have community impacts (e.g., sale of former mission land to developers). The Act does not require any public notice or consultation before a sale or lease of church land. The Bishop can sell land to private parties without any community input or regulatory approval beyond what would normally apply to a land sale (e.g., planning approvals). This is a standard position for private property transactions, but may be notable given that some of this land was originally granted for charitable purposes.

Indigenous communities: The Kimberley region has significant Indigenous populations, and some church land may be on or near Aboriginal communities. The Act does not address any cultural heritage or native title issues. If church land is subject to native title determinations or Indigenous land use agreements, those rights are not affected by the Act; the Bishop’s dealings must comply with the Native Title Act 1993 (Cth) and relevant state legislation. The Act simply vests legal title in the Bishop; it does not extinguish any rights that third parties (including native title holders) may have. However, the automatic vesting may have implications for any claims based on the prior holders’ management of land held on trust for Indigenous people. The Act does not mention Indigenous interests, and no such interests appear in the source.

The Act creates a set of rights for the Bishop of Broome and corresponding protections for third parties, but imposes surprisingly few duties. The Bishop’s main duty is procedural: to apply for registration of the vesting under section 6 if he wishes the title to reflect the change. There is no statutory duty to register, but failure to do so may create practical problems for future dealings because the Bishop may not be the registered proprietor of Torrens title land, and the Registrar of Titles may require proof of the vesting before dealing with a subsequent transaction. Even without registration, the Bishop holds indefeasible title under section 3 as against the world, subject only to prior interests. But the Transfer of Land Act 1893 gives priority to registered interests, so the Bishop would be wise to register to protect his interest against a transferee from the former registered proprietor.

The Bishop’s rights under the Act are substantial. He has the right to hold property as a corporation sole with perpetual succession (section 4), to sue and be sued in that name, to purchase and take property, and to sell, mortgage, or lease property vested in him under section 3 or acquired after commencement. The sale, mortgage, and lease powers under section 5 override all but two constraints: (1) an express trust or condition against alienation, and (2) the provisions of section 7 of the Roman Catholic Church Lands Act 1895. The latter provision requires that dealings by a bishop under that Act be with the consent of the Roman Catholic Bishop of Perth. Since Broome is now a separate diocese, this requirement may be anachronistic; but the Act says the Bishop’s powers are subject to it. In practice, modern conveyancing likely ignores this, but it remains a statutory caveat.

The Bishop also has the right to appoint attorneys under section 7, limited to priests of the Diocese. This allows delegation of property management functions without needing the Bishop himself to sign each transfer. The attorney can exercise all or any powers under the Act. The Bishop must execute the power of attorney under hand and seal; the Act does not specify that it must be registered under the Powers of Attorney Act 2015 (WA), but registration would be prudent for land dealings.

Third parties have a right to rely on the statutory protection in section 5(3). They are not bound to inquire into the necessity or regularity of the sale, mortgage, or lease, and are not affected by notice that it is irregular. This is a substantive right that shifts risk from the third party to the Church. If the Bishop breaches canon law or internal governance rules, the third party’s title remains valid. The Church’s only recourse is against the Bishop personally under canon law or possibly for breach of fiduciary duty (though the Bishop holds legal title, not a trust in the strict sense). The Act does not create a trust; the Bishop holds property as a corporation sole, not as a trustee. However, because the property was originally held for church purposes, there may be a charitable trust in equity. The Act does not clarify this, leaving the Bishop’s duties ambiguous.

The Act also gives the acting Bishop or Bishop-Elect a right to exercise powers in an interregnum (section 8), ensuring continuity. The acting Bishop must be elected by the consultors of the Diocese; the Act does not require any court order or registrar approval. This is a practical right that avoids paralysis when a Bishop dies between appointments.

For the Bishop’s predecessor officeholders (the previous three entities), the Act imposed the duty to transfer: section 3 automatically vests property without their involvement. They have no right to compensation for the loss of the property; the Act is silent on compensation, implying the property was always ultimately for the Vicariate, and the Act merely formalises that.

For each of the prior holders, there is no ongoing duty after vesting; the Act is self-executing.

For the Pious Society of Missions Incorporated, the Act ended its role as property holder within the Kimberleys. If the Society still operated in the area, it would now hold no real property.

The Registrar of Titles has a duty to register the vesting free of charge upon application by the Bishop. This is a statutory duty, but the Act does not provide a timeframe; the Registrar might process it under usual dealing priorities.

The Act contains no penalty provisions whatsoever. There are no criminal offences, no fines, no imprisonment terms. The Act deals solely with property vesting, corporate status, and powers. The only mechanism for enforcement is through civil action. If a person deals with church property without authority (e.g., a person purporting to be the Bishop sells land when they are not the officeholder), normal laws of fraud, forgery, and conversion apply. The Act does not create any special enforcement regime.

Enforcement of the Bishop’s compliance: Since the Act does not impose duties on the Bishop other than procedural ones (registration of vesting, sealing of attorney appointments), there is little to enforce. If the Bishop fails to register the vesting, there is no penalty; the consequence is practical: the previous owner remains on title, creating confusion. If the Bishop sells land without complying with the proviso in section 5(1) (express trust or condition against alienation, or the s.7 of the Roman Catholic Church Lands Act 1895 consent requirement), the sale may still be valid as against the third party due to section 5(3) protection, but the Church itself may have internal canon law remedies against the Bishop. The Act does not give any person (including the Attorney General, as the protector of charitable interests) a statutory right to challenge the Bishop’s dealings, unless a charitable trust is established and a breach of trust occurs. However, the Act does not create a trust; it merely vests property subject to trusts. If there is a charitable trust for a specific purpose (e.g., “for the education of Aboriginal children in Broome”), a sale of that land without applying the proceeds to that purpose might breach the trust. The Act does not abrogate trust law; it only allows dealings that are subject to trusts. The Bishop can sell free of the trust if the trust is not an express condition against alienation - which is a subtle distinction. Section 5(2) says that a trust for the Church generally is not an express condition against alienation. But a specific charitable trust for a particular purpose (e.g., a school) is arguably a trust that the property be used for that purpose. The Act says the Bishop may sell “subject to any express trust or condition against alienation”. The trust remains after sale: the proceeds might be held on the same trust. The Act does not say the Bishop can sell free of the trust; it says he may sell and transfer “freed and absolutely discharged from any trust or condition affecting the lands, not being an express trust or condition against alienation” (section 5(1)(a)). So if there is a trust that does not expressly forbid alienation, the Bishop can sell and the purchaser takes free of that trust. That means the trust is extinguished as against the land, and the proceeds will presumably be held on the same trust (by analogy with partition or sale by trustees). The Act does not compel the Bishop to reinvest in like property or account to the trust beneficiaries. There is no statutory enforcement mechanism for beneficiaries. The only enforcement would be a common law action for breach of trust, if the Bishop is a trustee. But the Bishop is a corporation sole, not a trustee; the Act does not impose trustee duties. This creates a real risk that specific charitable purposes could be frustrated without remedy. However, the Attorney General’s parens patriae jurisdiction over charities could potentially be invoked.

Enforcement against third parties: A third party who purchases from the Bishop is protected by section 5(3). If the Bishop’s sale was invalid for want of power (e.g., because the land was subject to an express trust or condition against alienation that made the sale void), the purchaser is still protected if they did not inquire into the power and had no actual notice. The Act does not require good faith; it only protects those who are “not bound or concerned to inquire” - which applies regardless of good faith. The wording is absolute: “no purchaser … is bound or concerned to inquire whether the power … was duly and regularly exercised, or to see to the application of any purchase, mortgage or other moneys, or to inquire into the necessity, regularity, or propriety of any sale, mortgage or lease, or be affected by notice that a sale, mortgage or lease is irregular, unnecessary or improper.” This means even a purchaser who knows the Bishop did not follow proper procedures is protected, because they are not affected by that notice. The only exception would be if the dealing is outside the scope of the Act entirely (e.g., the Bishop sells land that he does not hold in his corporate capacity, or sells to himself). Then section 5 does not apply. But for dealings within the Act, third parties have what amounts to statutory immunity. This makes enforcement against third parties virtually impossible, unless the third party had actual knowledge that the Bishop had no power at all (e.g., the land was owned by a third party, not vested in the Bishop).

No regulatory oversight: There is no regulator for this Act. The Act does not designate any authority to oversee the Bishop’s actions. The Registrar of Titles performs a ministerial role. The Act is essentially an enabling statute with no ongoing supervision. The only enforcement lever would be negative: if the Bishop abuses his powers, the Church might apply to the Supreme Court for an injunction or declaration, but the Act does not give the Court special jurisdiction. Ordinary equity principles apply.

Crown remedies: The Crown is not mentioned. The Act does not reserve any rights to the Crown. The Second Schedule Acts are overridden, implying no residual Crown oversight.

In summary, the Act has no penalties and minimal enforcement possibilities. The design relies on internal church discipline and canon law to ensure the Bishop acts appropriately. The only real legal risk is for the Bishop himself, if he breaches trust and is sued, but the Act does not create a trust. For third parties, the Act provides maximum protection, making enforcement against them nearly impossible.

The Act explicitly overrides seven named Acts listed in the Second Schedule, insofar as they would restrict the power to sell, mortgage, or lease lands under section 5. Those Acts include the Roman Catholic Church Lands Ordinance 1858 (the old legislative numbering, now cited as such), the Roman Catholic Church Lands Act 1895, its 1902 amendment, the Roman Catholic Church Property Act 1911 and its 1912 and 1916 amendments, and the Roman Catholic Geraldton Church Property Act 1925. All of these are older statutes that created different property holding regimes for various Catholic dioceses in Western Australia, often with restrictions on alienation, requirements for government consent, or specific trustee arrangements. Section 5(1) overrides them “Notwithstanding anything contained in” them, but retains the requirement in section 7 of the Roman Catholic Church Lands Act 1895 which necessitates the Bishop of Perth’s consent for dealings by other bishops. This retention is odd and may create a residual burden: a Bishop of Broome who wishes to sell land should in theory obtain consent from the Bishop of Perth. The Roman Catholic Church Lands Act 1895 is a private act that established the Bishop of Perth as a corporation sole and gave him powers; section 7 says “no sale, mortgage, lease, or other disposition of any lands belonging to the Roman Catholic Church … shall be made by any Bishop other than the Bishop of Perth without the consent of the Bishop of Perth”. The Broome Act does not remove that requirement, only stating that the other Acts are overridden. The Broome Act’s own section 5(1) says “subject to … the provisions of section 7 of the Roman Catholic Church Lands Act 1895”. So the consent requirement remains. However, after the creation of the Diocese of Broome, it is unclear whether the Bishop of Perth still has authority to veto Broome’s land dealings. The provision likely is an anachronism that no one follows, but as a strict statutory matter, it is binding. This is a gotcha for any conveyancer: the Bishop of Broome’s power to sell is subject to the Bishop of Perth’s consent. If that consent is not obtained, the sale may be voidable as against the Church (but protected as against a third party under section 5(3)). Only the Church could challenge the sale, and only if it has knowledge. In practice, the Bishop of Broome may have a canonical obligation to consult with the Bishop of Perth, but the statutory requirement is clear. This interaction is a trap for the unwary.

The Act also interacts with the Transfer of Land Act 1893 (WA) and the Registration of Deeds Act 1856 (WA). Section 6 provides for free registration of the vesting on the Bishop’s application. It does not override any requirement of those Acts; it simply mandates that the Registrar note the vesting. For subsequent dealings, the Bishop as a corporation sole can become registered proprietor under the normal provisions of the Transfer of Land Act. The Act does not overstep the Torrens system; it uses it.

The Act interacts with the Roman Catholic Church Lands Act 1895 in a broader sense: section 4 of the Broome Act gives the Bishop of Broome the same powers as the Bishop for the time being administering the ecclesiastical affairs of the Roman Catholic Church in Western Australia under the 1895 Act. That appears to incorporate by reference all powers under the 1895 Act (which include powers to hold land, sue, etc.). This is a drafting shortcut; the Broome Act does not reproduce those powers.

The Act also interacts with trust law generally. As discussed, section 5(2) defines what is not an express trust or condition against alienation. This interacts with equitable trusts. If a trust for the benefit of the Church is declared, it may be extinguished by a sale under section 5. The Act does not abrogate the common law of trusts; it merely provides that a particular type of trust clause does not prevent alienation. The effect is that gifts to the Church for general purposes can be disposed of freely, but gifts specifically requiring non-alienation may survive. This interacts with the Charitable Trusts Act 1962 (WA) and the general law of cy-pres, because if land given for a specific charitable purpose is sold, the proceeds may need to be applied cy-pres. The Act does not provide for cy-pres; it just allows the sale. This creates a potential gap: the bishop could sell land given for a specific parish church and use the money for a school in another town, which would be a variation of the charitable trust. Without a cy-pres scheme approved by the Attorney General or the Court, the bishop might be in breach of trust. The Act does not authorise this; it only authorises the sale free of the trust. The trust would then attach to proceeds. The bishop would need to manage the proceeds in accordance with the trust. The Act does not give the bishop power to ignore the charitable purpose. This is a significant interaction: the Act empowers disposal of land, but not of the trusts themselves. Charities law must still be complied with.

The Act interacts with the Native Title Act 1993 (Cth) and the Aboriginal Heritage Act 1972 (WA). The Act does not mention them. The automatic vesting in 1970 does not affect native title, as native title survived Crown grant and could not be extinguished by a state law that vests land in the Bishop unless it had a clear and plain intention to extinguish. The Roman Catholic Bishop of Broome Property Act 1957 as amended has no such intention. It vests land subject to all interests. Native title is a form of property right. If native title exists on any of the lands listed in the First Schedule, it would not be affected.

The Act interacts with planning and local government law. The Bishop must obtain all necessary approvals (e.g., development applications, building permits) before developing land. The Act does not give any planning exemptions.

The Act interacts with the Duties Act 2008 (WA) (formerly Stamp Act 1921). The vesting is not a dutiable transaction because it occurs by force of statute without a transfer instrument. The Act does not mention duties; the reprint note says “Other relevant Act: the Roman Catholic Church Lands Act 1895”. It does not mention stamp duty. In practice, the automatic vesting under section 3 should not attract duty because no transfer occurs; the Registrar notes the vesting free of charge. For subsequent sales by the Bishop, normal duty applies unless an exemption exists (e.g., for charities under some state regimes). The Act does not grant any duty exemption.

The Act interacts with the Trustees Act 1962 (WA). Since the Bishop is not a trustee under the Act (he is a corporation sole, but may be a trustee of property subject to trusts), the provisions of the Trustees Act may apply, including powers of sale, investment, and delegation. The Trustees Act is general; the Broome Act is specific and overrides it to the extent of inconsistency, but likely not.

The Act interacts with canon law of the Catholic Church, but state law does not enforce canon law. Section 5(3) protects third parties even if canon law is violated. Internal church law may require the Bishop to obtain permission from the Holy See for alienation of property above certain values (e.g., under Code of Canon Law canons 1291-1294). The Act does not override canon law, but it does not require compliance for state property law purposes. The Bishop may face canonical penalties (e.g., suspension) but the sale remains valid in civil law.

The Act was originally passed in 1957 as the Roman Catholic Vicariate of the Kimberleys Property Act 1957 (No. 32 of 1957, 5 Eliz. II No. 32) and received assent on 5 November 1957, commencing on the same day. It was amended by the Roman Catholic Vicariate of the Kimberleys Property Act Amendment Act 1970 (No. 41 of 1970), which received assent on 23 September 1970 and commenced on that day.

The 1970 Act made four substantive changes. First, it amended the short title in section 1 to the current name, reflecting that the Vicariate had become the Diocese of Broome and the Vicar Apostolic now held the title Bishop of Broome. The original short title had referred to the “Roman Catholic Vicariate of the Kimberleys” which had become outdated after the papal elevation of the Vicariate. Second, section 2 of the 1970 Act amended section 3 of the principal Act to insert a reference to the date of commencement of the 1970 Act as the time from which property vests. Originally, section 3 had provided for vesting “from the coming into operation of this Act” (i.e., the 1957 Act). The amendment changed this to “from the coming into operation of the Roman Catholic Vicariate of the Kimberleys Property Act Amendment Act 1970”. This was a crucial change: the 1957 Act had originally vested property from 1957, but the 1970 amendment created a new vesting date of 23 September 1970. Why? Possibly because the 1957 vesting was not fully implemented or there was a gap between the 1957 Act and the actual establishment of the Diocese. The amendment ensures that the property vests only from the date the Diocese was formally established, or at least from the date the names were changed. The effect is that property held by the prior entities between 1957 and 1970 remained with them, then passed to the Bishop of Broome in 1970. Third, section 3 of the amending Act amended section 8 to replace “Vicar Apostolic” with “Roman Catholic Vicar Apostolic” and inserted the reference to “Acting Bishop or Bishop-Elect” to align with the new titles. Fourth, section 4 inserted the current section 9, which provides for the change of references from Vicariate to Diocese and from Vicar Apostolic to Bishop of Broome. This section also extended the change to all other Acts, laws of the State, and documents in force before the amendment date.

After 1970, the Act underwent five further minor amendments, none altering the substantive property scheme.

In 2003, the Statutes (Repeals and Minor Amendments) Act 2003 (No. 74 of 2003) section 149(2) amended the Second Schedule by inserting the word “Geraldton” into the title of the last entry: it changed “Roman Catholic Church Property Act 1925” to “Roman Catholic Geraldton Church Property Act 1925”. This was a correction of the schedule description to match the actual title of that Act. The schedule already had that entry as a line item, but the description was ambiguous. The amendment was purely cosmetic but ensures correct reference.

In 2006, the Land Information Authority Act 2006 (No. 60 of 2006) section 152 amended section 6 to update the references to the Transfer of Land Act 1893 and Registration of Deeds Act 1856 (previously the section referred to “the Transfer of Land Act 1893-1954” or older versions). This change was consequential on the consolidation of land registries and the creation of Landgate. The section now simply refers to the Acts by their current short titles, without year ranges.

In 2010, the Standardisation of Formatting Act 2010 (No. 19 of 2010) section 30 made purely typographical changes to the schedules. It added headings to each part of the First Schedule (e.g., “Part I , Land transferred from Roman Catholic Bishop of Perth”) and added a heading to the Second Schedule. These changes were part of a government-wide initiative to standardise legislative formatting. They did not alter the content of the schedules, only the presentation.

The compilation table shows reprints in 2003 and 2014. The current reprint is as at 22 August 2014. The Act has not been amended since 2010. It is now nearly 70 years old and has seen very few substantive changes. The core provisions (sections 3, 4, 5) remain largely as originally drafted, with the 1970 amendments being the only significant ones.

The Act’s long title also changed: originally it referred to the “Roman Catholic Vicar Apostolic of the Kimberleys”; the amendments updated it to “Bishop of Broome”. The 1970 amendments also changed the name of the Act itself, as noted in the compilation table: formerly cited as Roman Catholic Vicariate of the Kimberleys Property Act 1957, now as Roman Catholic Bishop of Broome Property Act 1957 (see note under section 1). The note in the compilation table says “Now cited as the Roman Catholic Bishop of Broome Property Act 1957; short title changed (see note under s. 1).” The section 1 itself was amended by No. 41 of 1970 to change the short title.

The Act has not been the subject of any consolidation or repeal attempts. It remains in force. No amendments have been made to extend its operation to other dioceses or to modernise the property powers (e.g., to cover strata titles, options, or modern financing methods). The Act is a static vestige of mid-20th century property legislation.

The Act has not been the subject of any reported litigation in Western Australia. A search of AustLII and other databases reveals no cases citing the Roman Catholic Bishop of Broome Property Act 1957 or its predecessor citation. This is unsurprising given the Act’s limited scope and its automatic vesting mechanism, which removes disputes over title. The Act provides strong protections for third parties, which discourages litigation against purchasers. Disputes, if any, are likely internal to the Church and resolved through canon law or private settlement. The absence of litigation does not mean the Act is uncontroversial, but rather that its operation is largely administrative and transactional.

Potential areas of litigation that could arise but have not: a dispute over whether land is subject to an express trust or condition against alienation, particularly if a parishioner challenges a sale of a historic church. Section 5(2) provides that a trust for the benefit of the Church is not an express condition against alienation. A court would have to interpret “express trust or condition against alienation” - whether it requires explicit words like “this land shall not be sold” or whether a trust that implicitly requires the land to be used for a specific purpose (e.g., “for the maintenance of the church building”) can be read as a condition against alienation. The Act’s wording suggests only a direct prohibition qualifies. There is no case law on this point.

Another potential dispute: the requirement in section 5(1) that the Bishop act “subject to” section 7 of the Roman Catholic Church Lands Act 1895. If the Bishop sells without the Bishop of Perth’s consent, could the Bishop of Perth sue for an injunction or damages? The Bishop of Perth could argue that the sale is void or voidable for breach of a statutory requirement. However, section 5(3) protects the purchaser. The Bishop of Perth’s remedy would be against the Bishop of Broome personally, perhaps for breach of fiduciary duty or for an account. But the Act does not expressly provide for such a cause of action. A court might imply a statutory duty, but given the 1970 amendment made Broome a diocese separate from Perth, it is unlikely a court would enforce a consent requirement from the Bishop of Perth for dealings within another diocese. The provision may be considered obsolete. If litigation arose, a court might read it down or find it impliedly repealed by the creation of the Diocese.

A third potential dispute: a claim by the Pious Society of Missions or its successors that the vesting in 1970 was ineffective because the Act did not properly transfer the Society’s property. The Society was incorporated; its property was held in its own name. The Act vests it in the Bishop. The Society could argue that the Act is an acquisition of property without just terms, contrary to section 51(xxxi) of the Commonwealth Constitution. The Act is a State Act, not a Commonwealth one, but the Constitution may apply via section 68B of the Constitution Act 1889 (WA) or through the implied freedom? Actually, the Commonwealth Constitution only restricts Commonwealth acquisitions. State acquisitions are regulated by the Western Australian Constitution Act 1889 (which at section 2 limits the Crown’s power to take property without compensation) and possibly the Interpretation Act 1984 (WA) section 36. The Roman Catholic Bishop of Broome Property Act 1957 does not provide for compensation. However, the property was originally held for the benefit of the Vicariate, and the Act merely consolidates legal title in the Vicariate’s bishop. The beneficial interests likely remain with the same Church entity. So it is not an acquisition for the purposes of compulsory compensation. The Pious Society of Missions was a missionary organisation that presumably held property for the benefit of the Church in the Kimberleys; transferring that to the bishop of that region is arguably consistent with the purpose. No litigation has arisen.

The Act might be cited in trust proceedings, where a question arises about the Bishop’s capacity to sell land. A court could refer to the Act to confirm the Bishop’s power. But the Act has not been judicially considered.

The Act’s litigation history is effectively nil. This is notable because it suggests the Act operates without controversy, or that any disputes are settled privately or within the Church’s internal structures. The absence of case law means the Act’s interpretation is untested, which itself creates uncertainty for legal practitioners: there is no guidance on key definitions like “express trust or condition against alienation” or the scope of section 7 of the Roman Catholic Church Lands Act 1895. This uncertainty could be a trap for the unwary (see Gotchas).

The Act is deceptively simple but contains several traps that can catch the unwary conveyancer, litigator, or church administrator.

1. The hidden consent requirement in section 5(1): The Bishop of Broome’s power to sell, mortgage, or lease land is expressly made “subject to … the provisions of section 7 of the Roman Catholic Church Lands Act 1895.” That section requires the consent of the Roman Catholic Bishop of Perth for any disposition by any other bishop. This is an archaic provision that predates the independence of the Broome Diocese. Most modern practitioners will not know this consent requirement exists. If a conveyancer is acting for a purchaser from the Bishop of Broome, they may assume the Bishop has complete power under the Broome Act, but the Act itself defers to an older private act. A sale without the Bishop of Perth’s consent might be challengeable by the Church, though section 5(3) protects the purchaser from inquiry. However, if the purchaser has actual notice of the lack of consent, they might be affected? Actually, section 5(3) says “no purchaser … shall be bound or concerned to inquire … or be affected by notice that a sale … is irregular, unnecessary or improper.” “Notice” includes actual notice. So even if the purchaser knows the Bishop of Perth did not consent, the Act says they are not affected by that notice. That is an extremely strong protection. It means the purchaser can ignore the lack of consent. The only risk is if the transaction is beyond the Bishop’s power altogether (e.g., the land is not vested in him). The consent requirement is a condition on the power, but section 5(3) effectively makes it non-enforceable against third parties. However, the Bishop himself may face canonical penalties. The trap is for the Bishop’s own advisors: if they fail to obtain the consent, they may expose the Bishop to internal church sanctions. The Act does not waive the requirement; it only protects the third party.

2. The meaning of “express trust or condition against alienation”: Section 5(1) says the Bishop’s power is subject to any express trust or condition against alienation. If a trust or condition expressly forbids selling the land, the Bishop cannot sell it (the land is not freed from the trust). Section 5(2) says that a trust for the use, purposes, or benefit of the Roman Catholic Church or the Vicariate is not an express trust or condition against alienation. But what about a trust that says “for the use of St. Mary’s Church, Broome” without saying “against alienation”? That is a trust for a specific purpose, but does it impliedly forbid selling? The Act only protects if the trust or condition is expressed against alienation. If a trust simply says “held for the benefit of St. Mary’s Church”, that is not an express condition against alienation, so the Bishop can sell and the purchaser takes free. The trust then attaches to proceeds. However, if the land was given “on condition that it shall never be sold” or “for so long as it is used as a church”, that is an express condition against alienation. The trap is that such trust instruments may not be recorded on title; they may exist in a will or trust deed from the early 1900s. A purchaser who does not search beyond the title may miss them. But the purchaser is protected under section 5(3) from being affected by such trusts if they do not inquire. But the protection is not absolute: if the trust is an express condition against alienation, the Bishop’s power does not override it; the dealing is arguably outside the Act. Section 5(3) protects the purchaser only for dealings “sold, mortgaged or leased under the provisions of this section.” If the sale is outside the scope of the section because there is an express condition against alienation that was not overridden, then the sale is not under the section. The protection may not apply. The Act does not say how a court would determine if a dealing is “under this section”. A prudent purchaser should ensure that no express condition against alienation exists. But the Act provides no mechanism to discover them.

3. The registration of the vesting: Section 6 says the Registrar must register the vesting on the Bishop’s application, free of charge. But it does not say the vesting is effective only upon registration. Section 3 says it vests “without the execution of any formal deed of assurance or transfer, vest absolutely and indefeasibly” from the date of the 1970 amendment. So legal title passed in 1970, even if not yet registered. If the Bishop never applied for registration, the person dealing with the previous registered proprietor would be misled. For example, if the land in Part III was formerly owned by the Pious Society of Missions, and in 1972 the Society purported to sell it to a third party, the third party might be able to obtain registration because the Society is still on title. The Bishop’s equitable (or statutory) interest may not be indefeasible against a bona fide purchaser for value without notice. Section 3 says “vest absolutely and indefeasibly”, but the Torrens system gives priority to registered interests. The Act does not explicitly override the Transfer of Land Act 1893’s provisions regarding priorities. Section 6 only provides for registration; it does not say that the unregistered interest prevails. So a third party who purchases from the old owner and registers will likely obtain good title, depending on the rules of priority. The Bishop should register the vestings as soon as possible. The trap is that many original certificates of title may still show the old proprietors if no application was made. The Act provides free registration, but the Bishop may not have applied for all titles.

4. Application to after-acquired property: Section 3 says the vesting applies to “all other property belonging to the Roman Catholic Church or held by any person in trust for or on behalf of that Church and situated within the Roman Catholic Vicariate of the Kimberleys”. This includes property acquired after 1970, but only if it belongs to the Church or is held in trust. If the Bishop acquires property in his own name as a natural person, it would not automatically vest in the corporation sole; he would need to transfer it. The Act only vests property that already belongs to the Church or is held on trust for it. So for new acquisitions, the Bishop as corporation sole should take title directly. But the Act does not impose an obligation to vest after-acquired property. The Bishop should ensure that any new land acquired for the Diocese is titled in the corporate name, not in his individual name.

5. The limitation to priests for attorneys: Section 7 only allows the Bishop to appoint priests of the Vicariate (now Diocese) as attorneys. He cannot appoint a layperson, a solicitor, or a property manager, unless that person is a priest. This severely limits delegation. The Bishop may need to hire a professional property manager, but that manager cannot exercise the statutory powers of sale, mortgage, or lease. The manager can handle negotiations, but the Bishop or a priest-attorney must sign the documents. If the Bishop is absent or deceased, the acting Bishop or Bishop-Elect can act under section 8, but only priests can be attorneys. This may cause practical bottlenecks in property transactions.

6. Interaction with section 8: succession without formal appointment: Section 8 says that upon the death of the Bishop, the Acting Bishop or Bishop-Elect “duly elected by the consultors of that Vicariate” shall be entitled to exercise powers until the appointment and consecration of a successor. The term “consultors” is a term from canon law that refers to a college of priests advising the bishop. But the Act does not define consultors or how their election is to be proved. A third party dealing with a person claiming to be Acting Bishop must verify that the person was validly elected. There is no public register of consultors or elections. The Act does not provide for a certificate of election to be conclusive. So a third party may have difficulty confirming authority. Section 5(3) may protect them if they rely on the Acting Bishop’s signature, but the question is whether the person is actually the Acting Bishop. The Act does not deem that any person acting as such is presumed to be. This is a gap.

7. No provision for revocation or amendment of attorney appointments: Section 7 says the Bishop may appoint attorneys. It says nothing about revocation. Under the Powers of Attorney Act 2015, a power of attorney can be revoked. But the Act does not state whether the appointment is revocable by the Bishop or automatically terminates on his death. Section 8 provides for succession, but if a bishop dies, an attorney appointed by the deceased bishop might no longer have authority. The Act does not address this. It would be prudent for appointments to be expressed as revocable and to terminate on the bishop’s death, but not required.

8. The override of trusts and potential charitable trust issues: As discussed, the Act allows sale free of most trusts. This could be used to circumvent charitable trusts. If a donor gave land for a specific purpose that is no longer needed, the Bishop could sell and use the proceeds for any church purpose. While this may be efficient, it could be challenged by the Attorney General or beneficiaries. The Act does not give the Bishop a statutory defence against a claim for breach of trust; it only gives the purchaser protection. The Bishop remains liable for breach of trust if he misapplies proceeds. The trap is overselling the protection: the Bishop may think he can ignore all trusts, but he cannot ignore the duty to apply the proceeds in accordance with the trust.

9. The Second Schedule Acts: which are overridden and which survive? Section 5 overrides the Acts in the Second Schedule, but only for the purpose of allowing sale, mortgage, or lease. Other provisions of those Acts may still apply (e.g., any requirement for the Bishop to keep a register of property). The Second Schedule lists seven Acts; the Roman Catholic Church Lands Act 1895 is both in the schedule (overridden for section 5 purposes) and yet its section 7 is specifically preserved by section 5(1). That is confusing: the Act is overridden but one clause is re-imposed. Practitioners must have the full text of the 1895 Act.

Compliance with the Act is straightforward for those who know it exists, but many will not. The Act imposes no ongoing regulatory obligations, but there are practical steps for the Bishop and third parties.

For the Bishop of Broome (the corporation sole):

1. Register the 1970 vesting on all titles still showing former proprietors. Section 6 provides free registration for the initial vesting. The Bishop should identify all land within the Diocese that vested under section 3 and ensure that each certificate of title has been updated to show “The Roman Catholic Bishop of Broome” as proprietor. This is not mandatory, but prudent to secure indefeasible title and avoid priority disputes.

2. For any new land acquisitions, ensure they are titled in the corporate name exactly as per the Act: “The Roman Catholic Bishop of Broome” (the name changed under section 9). The Bishop should avoid taking title in his personal name or in names of trusts. The Act does not automatically vest after-acquired property unless it already belongs to the Church; it is safer to vest directly.

3. Maintain a common seal as required by section 4. The seal should be used for all formal documents (transfers, mortgages, leases) executed by the Bishop. The seal proves the corporate character. The Act does not require the seal to be registered, but it should be kept securely.

4. When selling, mortgaging, or leasing land, ensure the Bishop obtains the consent of the Bishop of Perth, despite the consent requirement being potentially obsolete. This is to avoid any internal church challenge and to comply with the Act’s wording. The consent should be in writing and kept on file. Even though section 5(3) protects third parties, the Bishop bears fiduciary duties to the Church.

5. Verify that no express trust or condition against alienation applies to the land. The Bishop’s legal counsel should search archives, wills, and trust deeds for any express prohibition on sale. If such a clause exists, the Bishop cannot sell free of it; he would need a court order or cy-pres scheme. A comprehensive due diligence on the land’s history is needed.

6. For leases: comply with any condition against leasing if it is an express condition against alienation, but note that section 5(1)(c) allows leases despite any trust or condition “not being an express trust or condition against leasing.” The Act only overrides conditions against alienation, not conditions against leasing specifically. So if a trust says “no leasing”, that may survive if it is an express trust or condition. The wording is slightly different: section 5(1)(c) says “notwithstanding any trust or condition affecting the lands, not being an express trust or condition against leasing.” This is odd: it implies that an express condition against leasing will survive. So the Bishop must check for specific prohibitions on leasing.

7. Appoint attorneys under section 7 only from among priests of the Diocese. The appointment must be under the Bishop’s hand and seal, in writing. The Bishop should consider appointing at least two priests to ensure continuity. The power of attorney should be express about which powers are delegated. The Bishop should record the appointment in a diocese register and provide copies to the attorneys.

8. Plan for succession: identify the Acting Bishop or Bishop-Elect in advance. Section 8 allows them to act immediately upon the Bishop’s death. The Bishop should ensure that the consultors have a process to elect an acting Bishop quickly. The Bishop could pre-authorise a priest as attorney to act in property matters in the interim, but attorneys appointed by a deceased bishop likely lapse. So the consultors should immediately appoint an acting Bishop who can then execute documents.

9. Keep records of all sales, mortgages, and leases, including the basis for believing the dealing was valid. This includes consents from the Bishop of Perth, searches for trusts, and evidence that the land was not subject to an express condition against alienation. This will assist in defending any future claim of breach of trust.

10. Apply proceeds in accordance with any trusts that existed over the land. Even though the land is sold free of trusts under section 5, the Bishop must apply the proceeds to the same or similar charitable purpose. The Act does not authorise misapplication. A separate trust account should be maintained.

11. Consider obtaining legal advice on the application of the Roman Catholic Church Lands Act 1895 beyond section 7. Section 4 of the Broome Act gives the Bishop the powers under that 1895 Act. Those powers may include the ability to appoint trustees or to apply to the Supreme Court for approval of dispositions. The Bishop should be familiar with the 1895 Act.

For third parties dealing with the Bishop (purchasers, mortgagees, lessees, and their solicitors):

1. Verify that the person executing the document is currently the Bishop of Broome (or an acting Bishop or Bishop-Elect, or an attorney appointed under section 7). Ask for proof of identity and office. For an attorney, ask for a certified copy of the power of attorney; for an acting Bishop, ask for certification from the consultors.

2. Search the land title to confirm that the Bishop is the registered proprietor. If the title still shows a former proprietor, ask the Bishop to register the vesting under section 6 before proceeding, or rely on the automatic vesting but note the priority risk.

3. Do not rely solely on the Act’s protections: still search for any express trust or condition against alienation. Even though section 5(3) protects you from inquiry, if the dealing is outside the scope of section 5, you may not have that protection. The safest approach is to require the Bishop to provide a statutory declaration that no such trust or condition exists to the best of his knowledge.

4. Do not worry about the Bishop of Perth’s consent or internal church approvals. Section 5(3) explicitly says you are not bound to inquire and are not affected by notice of irregularity. You can ignore these.

5. Ensure the document of transfer, mortgage, or lease is executed by the Bishop in his corporate name, with the common seal affixed, and witnessed. The Act does not require witnessing, but it is good practice.

6. For mortgages, ensure the mortgage is properly stamped and registered under the Transfer of Land Act. The Act does not give any exemptions from usual requirements.

7. Be aware of the limitation in section 5(3): it only applies to dealings “sold, mortgaged or leased under the provisions of this section.” If the Bishop attempts to exercise a power outside the Act (e.g., a gift, a partition, a surrender), the protection may not apply. For those, the normal law applies.

8. If the dealing involves a lease of more than a short term, check if the Bishop’s power to lease is limited by any express condition against leasing (section 5(1)(c)). Again, you can rely on the Bishop to have checked, but you may want confirmation.

9. Register the document promptly. The Bishop’s title is not subject to any special grace period. Normal registration ensures priority.

10. If in doubt, seek a legal opinion from a Victorian or Western Australian property lawyer familiar with ecclesiastical property statutes. The Act is not commonly known among general practitioners.

For the Registrar of Titles (Landgate):

1. Process applications for registration of the vesting under section 6 free of charge upon receipt of the correct forms and supporting evidence.

2. Note the vesting on the certificate of title. There is no need to require evidence of the Bishop’s office; the Act itself vests the land.

3. When subsequent dealings are lodged, verify that the Bishop (or attorney) has the power to deal under the Act. The Registrar may rely on the execution being consistent with the corporate name and seal.

For the Bishop of Perth:

1. When asked for consent under section 7 of the Roman Catholic Church Lands Act 1895, consider whether it is appropriate to grant. The consent requirement may be a formality, but it should be given unless there is a good reason to withhold.

2. Keep a record of consents given.

Overall compliance burden: The Act is undemanding in terms of reporting or administrative bureaucracy. Its main compliance challenge is historical: ensuring that all land titles are updated and that any express conditions against alienation are identified. For the Bishop, the Act is a powerful tool with few strings. For the third party, the Act provides strong protection but not absolute immunity; diligence is still advisable. For lawyers, the Act is a niche area that requires reading the Act and the 1895 Act together. The risk of non-compliance is low because the Act rarely leads to disputes.