Roman Catholic Church Lands Act 1895

Trust and trusteeship. The preamble recites that under the Roman Catholic Church Lands Ordinance 1858 (formerly Ordinance 4 of 22 Vict.), all church property was vested in the Roman Catholic Bishop for the time being, on the trusts contained in the deeds of grant. The 1895 Act does not extinguish those trusts but gives the Bishop powers to override them in certain circumstances. When land is mortgaged, section 2(2) discharges it from the trusts in favour of the mortgagee. When land is sold under section 5, the proceeds presumably fall to be held on trust, but the Act is silent on that; the purchaser takes free of the trust because the conveyance is authorised by statute.

Crown grants without pecuniary consideration. This is the key category requiring Governor in Council approval. Land given by the Crown to the Church for free (i.e., as a gift or endowment) cannot be mortgaged or leased for more than 21 years, nor sold, unless the State’s executive approves. This preserves a degree of Crown control over public assets given to the Church. Section 7 requires the transaction to be countersigned as approved by the Governor. The rationale is presumably to prevent alienation or encumbrance of land held as a public trust without government oversight.

Express trust against alienation. Section 4(1)(b) forbids a mortgage of lands acquired otherwise than from the Crown if they are held upon an express trust or condition against alienation. The test is strict: the trust must be expressly against alienation; a trust simply for Church purposes does not count (s 4(2)). This means donors can protect their gift from being mortgaged only by inserting an explicit prohibition on alienation. Many old deeds likely used language of “for the use of the Roman Catholic Church”, which the Act now treats as not creating an express trust against alienation, thus clearing the way for borrowing.

No personal liability. Section 2(3) is a lender’s trap. Unless the mortgage says otherwise, the Bishop is not personally liable for the debt. The lender’s only recourse is against the land. This reduces the Bishop’s risk but also reduces the value of the security. Lenders must price this risk accordingly.

Protection of third parties. Section 6 creates a statutory shield: a purchaser, mortgagee or lessee need not inquire into the regularity of the exercise of the power, need not see to the application of moneys, and is not affected by notice of irregularity. This facilitates marketability of church lands, but it also means the Church may suffer loss if the Bishop acts without proper authorisation, because the counterparty is protected. The only exceptions are transactions that require Governor’s approval under section 7; those are invalid without it.

Definition of “lands”. Section 8 is broad: it includes lands granted by the Crown or otherwise acquired by the Bishop after the Act’s passing, for Church purposes. This means the powers extend to future acquisitions, not just land held at commencement.

The Roman Catholic Bishop for the time being in Western Australia is the primary actor. The Act vests powers in him personally and his successors, to mortgage, lease, and sell church lands. He must also ensure compliance with the consent requirements: for Crown-granted land, he must obtain Governor in Council approval for mortgages, leases over 21 years, and sales. The reference to “the said Archbishop” at one point in section 2(1) appears to be a drafting anomaly from a 1916 amendment; the body refers to Bishop throughout, and the short title identifies the Act as applying to the Bishop. In practice, the current Archbishop of Perth holds the office, but the statute uses “Bishop” consistently except in that one place. The Bishop’s advisers must consent to the purpose of borrowing (s 2(1)).

Mortgagees, lessees, and purchasers. They obtain property rights under the Act that are protected from irregularities. A lender takes a mortgage free of trusts, and with no personal liability of the Bishop unless the deed says otherwise. A lessee gets a lease that is valid regardless of internal church governance. A purchaser of Crown-granted land gets good title if the transaction is approved by the Governor in Council and countersigned. These parties do not need to investigate the Bishop’s authority or the application of proceeds.

The Crown in right of Western Australia (Governor in Council). The Governor must consent in writing to mortgages, long leases, and sales of Crown-granted land. The Crown also has an interest in ensuring that land given without consideration is not frittered away without oversight. The Act does not specify criteria for granting or refusing consent, leaving discretion to the Executive.

The Roman Catholic Church in Western Australia as beneficiary. The Church community is indirectly affected because the Bishop’s powers can mortgage or sell lands that were previously held in trust for Church purposes. If the Bishop borrows imprudently, the land may be lost. Alternatively, prudent borrowing can improve church assets.

Donors of land to the Church. Donors who gave land on an express trust against alienation (other than Crown grants) are protected: section 4(1)(b) prohibits mortgages of such land. However, donors who used standard Church-benefit language are not protected; the Act deems that trust not an express trust against alienation, so the Bishop can mortgage those lands.

Lenders and financial institutions. They must assess the statutory framework. The lack of personal liability under section 2(3) means they cannot sue the Bishop personally unless the mortgage expressly provides otherwise. They also must ensure that for Crown-granted land, the Governor’s consent is obtained and countersigned; otherwise the mortgage is invalid under section 7. The protection under section 6 may make them comfortable lending on the security of church lands, but the unusual liability feature may require higher interest or more security.

Advisers. The Bishop must act with the consent of the advisers for the purposes of borrowing, though the Act does not define who the advisers are. This suggests internal church consultation is required.

Bishop’s right to mortgage. Section 2(1) confers a broad power to borrow on the security of church lands, for any purpose deemed necessary with the consent of the advisers. The lands are discharged from trusts in favour of the mortgagee (s 2(2)). The Bishop has no personal obligation to repay unless the mortgage provides otherwise (s 2(3)). This is a right with a significant limitation: for Crown-granted land given without consideration, the Governor’s consent is required and the transaction must be countersigned (ss 4(1)(a), 7). For non-Crown land, the Bishop must ensure there is no express trust against alienation (s 4(1)(b)).

Bishop’s right to lease. Section 3 gives an unrestricted power to lease any vested lands for any term, with or without renewal, on any terms. However, for Crown-granted land, a lease exceeding 21 years requires Governor in Council consent (s 4(1)(a)). Leases of 21 years or less do not require state approval.

Bishop’s right to sell Crown-granted land. Section 5 permits sale only with Governor in Council consent. The consent must be evidenced by countersignature (s 7). There is no express power to sell non-Crown lands; presumably the Bishop holds those on trust and would need to rely on trust law or other enabling legislation.

Duty to obtain Governor’s approval. For mortgages, leases over 21 years, and sales of Crown-granted land given without consideration, the Bishop must seek and obtain the written consent of the Governor in Council, and the assurance must be countersigned. Failure renders the transaction invalid (s 7). This is a mandatory procedural duty.

Rights of purchasers, mortgagees, lessees. Section 6 gives them a statutory right to rely on the transaction without investigating regularity or application of money. They are not affected by notice of irregularity, except that the transaction itself must be valid on its face (e.g., if Governor’s approval is required and absent, the transaction is void under s 7; section 6 does not save it).

No duty to inquire. Section 6 explicitly states that it is not necessary for them to inquire whether the power was duly exercised or to see to the application of moneys. This reduces transaction costs and due diligence burdens.

Rights of the Crown. The Governor in Council has a discretionary power to consent or withhold consent. The Act gives no guidelines. The Crown could refuse on policy grounds, e.g., to preserve land for public benefit or because the Church is selling historic assets.

The Act does not create any criminal offences. The primary consequence of non-compliance is invalidity. Section 7 states that any assurance on sale or mortgage, or any lease exceeding 21 years, of Crown-granted land given without consideration, “shall be valid unless countersigned as approved by the Governor”. The drafting is negative: it says no such assurance shall be valid unless countersigned. So if the Bishop sells Crown-granted land without the Governor’s countersigned approval, the sale is void. The purchaser gets no title. Similarly, a mortgage or long lease without approval is void. This creates a risk for counterparties, but section 6 does not protect them in this scenario because the transaction itself is invalid, not merely irregular. The protection of section 6 applies only to “any power of sale, mortgage, or lease” that was “duly and regularly made or exercised”. If the power does not exist because the Governor’s approval was not obtained, the transaction is not a valid exercise of power at all, and section 6 cannot cure it.

There is no monetary penalty for the Bishop. However, the Bishop may face civil liability in equity if he acts ultra vires. The trusts on which he holds land may be breached if he mortgages or leases land without authority, and the beneficiaries (the Church) could sue for breach of trust. But section 6 protects third parties who deal with the Bishop in good faith, so the Church’s remedy is against the Bishop personally, not against the land in the hands of the mortgagee, lessee, or purchaser.

The Act also does not specify consequences for borrowing without the consent of the advisers, but that is an internal matter. A mortgage executed without adviser consent may still be binding on the land if the lender had no notice of the lack of consent (section 6 again). The Bishop may then be accountable to the Church for acting without proper authority.

The notes to the Act state that it is to be read as one with the Roman Catholic Church Lands Amendment Act 1902, and it is affected by the Roman Catholic Church Property Act 1911, the Roman Catholic Church Property Act Amendment Act 1912, and the Roman Catholic Church Property Acts Amendment Act 1916. The most significant is the 1916 Act, which amended section 2 to insert the phrase “that the said Archbishop in his corporate name, with the consent of the advisers, may deem necessary from time to time” and also perhaps changed “Bishop” to “Archbishop” in that subsection. The compilation table shows section 6 of the 1916 Act was the amending provision, but the exact text is not reproduced. The result is that the Act now refers to both the Bishop (in sections 1, 2 heading, 2(1) first part, 3, 4, 5, 6, 7, 8) and the Archbishop (in section 2(1) second part). There is an apparent inconsistency: the corporate name of the Archbishop is referenced, but the Act otherwise vests powers in the Bishop. This likely reflects that the Bishop of Perth later held the title of Archbishop, and the 1916 amendment updated the reference in that clause. Practitioners should treat the powers as exercisable by the person holding the office of Roman Catholic Bishop (now Archbishop) of Perth, as the ecclesiastical administrator.

The Act also has a long historical relationship with the Roman Catholic Church Lands Ordinance 1858 (now cited as such). That Ordinance vested the land in the Bishop; the 1895 Act gives him powers to deal with it. The two instruments form a statutory scheme.

Other relevant written laws listed include: the Roman Catholic Geraldton Church Property Act 1925, Roman Catholic New Norcia Church Property Act 1929, Roman Catholic Bunbury Church Property Act 1955, and Roman Catholic Bishop of Broome Property Act 1957. Those are separate private Acts dealing with specific dioceses or missions. The 1895 Act is the primary enabling statute for the Perth diocese (where the Bishop/Archbishop of Perth holds the office). The other Acts may grant similar or different powers to bishops in those regions, and they may overlap or modify the 1895 Act. The note says the 1895 Act is to be read as one with several of those Acts, so they should be interpreted together.

The Act interacts with general property law in Western Australia. Mortgages and leases granted under the Act are subject to the same registration requirements as any other dealing under the Transfer of Land Act 1893 (or its successors) if the land is under the Torrens system. The Act’s provisions about discharge of trusts may operate as a statutory override of the trust upon registration. Section 2(2) states that lands mortgaged shall be held by the mortgagee freed from the trusts. This may be effective without any formal application to court.

The Act may also interact with charities legislation. If church lands are held on charitable trusts, the Bishop’s powers may be broader than those available to a charity trustee under the general law. The Act is a specific statutory authority that displaces the ordinary duty to obtain court approval for sale or mortgage of charitable land.

The Act received royal assent on 12 October 1895 as a private Act. Its original short title was The Roman Catholic Church Lands Act 1895 (now amended by the insertion of a new section 1 by the Statutes (Repeals and Minor Amendments) Act 2003, section 149(1)). The first substantive amendment came with the Roman Catholic Church Property Acts Amendment Act 1916 (No. 4 of 1916), which by section 6 amended section 2. The amendment inserted the reference to “the said Archbishop in his corporate name” and the phrase “with the consent of the advisers” into the borrowing power. It likely also updated the title of the office as the Perth bishop had been elevated to Archbishop. The exact text is not reproduced in the compilation, but the section now reads in part: “that the said Archbishop in his corporate name, with the consent of the advisers, may deem necessary from time to time”. This created an inconsistency with the rest of the Act, which still uses “Bishop”. The compilation note at the end indicates that the Act is now known as the Roman Catholic Church Lands Act 1895 (short title changed per note under s. 1). The 2003 amendment was a machinery amendment to update the short title provision as part of the Statutes (Repeals and Minor Amendments) Act. It replaced the original section 1 with a modern citation section.

The Act has not otherwise been substantively amended. The compilation table shows a reprint in 2003 (as at 7 February 2003) incorporating the 1916 amendment. Several other Acts (Roman Catholic Church Property Act 1911, 1912, 1916 amendments) affect the Act, but those are separate statutes that may expand powers or apply to other regions. The 1902 Roman Catholic Church Lands Amendment Act is to be read as one with this Act, but its full content is not provided.

The Act is a rare surviving 19th century private Act. Its spare amendment history suggests it has functioned without major revision for over a century. The lack of amendment may reflect that the powers provided were adequate, or that later Acts for other dioceses took precedence. The 1916 amendment was driven by a change in episcopal title.

The source text does not cite any cases, and no litigation history is referenced in the compilation. This is unsurprising for a narrow private Act. There may be unreported or historical cases, but the analyst cannot invent them. The Act has likely been the subject of interpretation in property disputes, but no publicly noted decisions are mentioned in the statutory notes. The Act’s clear language and the protection for third parties (section 6) probably reduce the incentives for litigation. Most disputes would likely involve the Church’s internal governance rather than third-party claims, and those would be dealt with under trust law or ecclesiastical law rather than directly under this Act. One possible area of tension: the definition of “express trust against alienation” in section 4(2) could be litigated if a donor’s deed includes terms that arguably go beyond a mere church-purpose trust. However, the Act gives a clear rule: a trust for the use or purposes of the Church is not an express trust against alienation. Litigants would have to argue that the donor added additional prohibitive language, such as “and this land shall never be mortgaged”. If that language is present, the mortgage is invalid. Another potential issue: whether the Governor’s approval was properly obtained and countersigned. A mortgagee might challenge the validity of a transaction if the countersignature is missing, but section 7 is unequivocal: no validity without it. Overall, the Act is written in a way that favours certainty for counterparties, which likely keeps litigation low.

The Bishop/Archbishop confusion. Section 2(1) refers to “the said Archbishop in his corporate name”, but the Act’s title and all other sections refer to “the Bishop”. The 1916 amendment inserted this, but the rest of the Act was not conformed. The person holding the office is now the Archbishop of Perth. However, a strict reading could cause doubt about whether the borrowing power is exercisable only by the Archbishop in his corporate name, while the leasing and selling powers remain with the Bishop. Practically, the same individual holds both roles, but the inconsistency is a trap for drafters who may rely on the wrong title in documents. Lenders should ensure that the borrowing resolution and mortgage refer to the Archbishop in his corporate name to match the statutory language.

Section 2(3) - no personal liability trap for lenders. Unless the mortgage expressly provides for personal liability, the Bishop is not liable. Many lenders may assume standard mortgage terms imply personal recourse. The Act reverses the default. Lenders need to negotiate and include explicit personal covenants. Otherwise, if the land value falls, the lender has no claim against the Bishop personally.

Crown-granted land: no consent, no validity. Section 7 makes any sale, mortgage, or long lease of Crown-granted land invalid without the Governor’s countersigned approval. This is a strict rule. Unlike section 6 protections, which apply to “duly and regularly made” exercises, a missing countersignature makes the transaction void ab initio. Section 6 cannot cure it because the power was not exercised at all. Counterparties must verify the countersignature.

Section 4(2) can be misleading. A trust “for the use or purposes … of the Roman Catholic Church” is not an express trust against alienation. Some donors may have intended to restrict alienation, but the Act overrides that. If a donor wants to forbid mortgages, they must use specific language like “on condition that this land shall never be alienated or mortgaged”. Simple church-benefit language is insufficient.

Leases over 21 years of Crown-granted land require Governor consent. Leases of exactly 21 years or less do not. But a lease with an option to renew beyond 21 years may count as a lease for a term exceeding 21 years, if the renewal right is exercisable. The Act says “any term … with or without a right of renewal”. The original term includes the potential for renewal? This is ambiguous. Conservative practice would be to obtain consent if the total possible term exceeds 21 years.

No express power to sell non-Crown land. Section 5 only addresses sale of Crown-granted land. The Bishop may need to rely on trust law or other legislation to sell land bought with private funds. The Act may be read as not conferring that power, so selling such land without court or trust approval could be a breach of trust.

Identify the land classification. The first step is to determine whether the land was granted by the Crown without pecuniary consideration for Church use; if so, it is Crown-granted land subject to sections 4(1)(a) and 7. If the land was acquired by purchase or gift from a private donor, it is non-Crown land. For non-Crown land, check the deed for an express trust or condition against alienation (using language stricter than “for the use of the Church”). If such a condition exists, the land cannot be mortgaged; leases and sales may be governed by trust law.

For a mortgage of Crown-granted land: obtain the written consent of the Governor in Council before executing the mortgage. The mortgage instrument must be countersigned as approved by the Governor (s 7). Ensure the mortgage includes an express personal liability clause if the lender requires recourse against the Bishop. The borrowing resolution should state the purpose and note that the advisers have consented. Section 2(1) requires the consent of the advisers; this should be documented in a board or council resolution.

For a lease of Crown-granted land over 21 years: follow the same Governor-consent process. For leases of 21 years or less, no state consent is required; the Bishop may lease under section 3 without further approval. For non-Crown land, check that the lease does not violate any trust conditions.

For a sale of Crown-granted land: obtain Governor in Council consent and countersignature. Section 5 only permits sale of Crown-granted land. No power of sale for other land is given; the Bishop should seek advice on trust law or specific statutory authority.

Due diligence for counterparties. While section 6 protects purchasers, mortgagees and lessees from irregularities, they should ensure that for Crown-granted land, the countersignature is present on the assurance. Without it, the transaction is void. They should also verify that the Bishop is the current holder of the office (check the government gazette or church records). Lenders should specifically include a personal liability clause if desired.

Documentation. All powers under the Act should be recited in the transaction documents. The mortgage or lease should refer to the Act and to any Governor’s consent order. The countersignature should be affixed to the deed.

Register the dealing. If the land is under the Transfer of Land Act, the mortgage, lease, or transfer must be registered. The Registrar of Titles may require proof that the Act’s conditions were met (e.g., a copy of the Governor’s consent). The discharge of trusts under section 2(2) should be noted on title.

Compliance with related Acts. If the land is in the Geraldton, New Norcia, Bunbury, or Broome dioceses, refer to the specific Acts listed in the notes instead of or in addition to the 1895 Act. The 1895 Act may not apply to those dioceses except where incorporated by reference. Legal advice specific to the diocese is necessary.

Internal governance. Ensure that the Bishop has the consent of the advisers (as per s 2(1)). This is likely a reference to the diocesan consultative bodies. Document the consent. Failure may not affect the validity of the transaction vis-à-vis third parties (s 6), but it could give rise to internal church disciplinary action or equitable claims.