Roman Catholic Vicariate of the Kimberleys Property Act 1957

The central concept is the corporation sole. Under section 4, the Roman Catholic Vicar Apostolic (now Bishop of Broome) is a corporation sole by the name “The Roman Catholic Vicar Apostolic of the Kimberleys” (now, by section 9, “The Roman Catholic Bishop of Broome”). A corporation sole aggregates the powers and property rights of the office in a single legal person that continues despite changes in officeholder. This avoids the need to re-vest property each time a new Bishop is appointed. The corporation sole has perpetual succession and a common seal. It can sue and be sued, and can purchase, hold, take, sell, mortgage, lease, or otherwise dispose of property vested under section 3 or acquired afterwards. It may also exercise all powers conferred on the Bishop administering the Roman Catholic Church in Western Australia by the Roman Catholic Church Lands Act 1895. The second key concept is statutory vesting. Section 3 vests in the Bishop (as corporation sole) all property belonging to the church within the Kimberleys Vicariate/Diocese, whether land or other property, without any formal transfer. The vesting is absolute and indefeasible, subject to existing trusts, encumbrances, and dispositions. This centralises ownership into a single holder, removing the earlier fragmentation where property was held by the Bishop of Perth, the Bishop of Geraldton, the Pious Society of Missions Incorporated, or other persons on trust. The overriding power in section 5 is a third key concept. It allows the Bishop to sell, mortgage, or lease land vested in him under the Act notwithstanding any trust or condition affecting the land, except an express trust or condition against alienation. This overrides the older Acts listed in the Second Schedule (such as the Roman Catholic Church Lands Act 1895, the Roman Catholic Church Property Act 1911, and others). Section 5(2) clarifies that a trust expressed to be for the use, purposes, or benefit of the Roman Catholic Church in general or the Vicariate/Diocese in particular is not an express trust or condition against alienation. That means such general church-purpose trusts do not block sale or mortgage. Only a trust or condition that expressly forbids alienation (selling, mortgaging, or leasing) will survive. Even then, the Bishop can still mortgage to pay off existing debts secured on church land (section 5(1)(b) allows mortgage to discharge existing mortgages). The protection of third parties in section 5(3) is critical: no purchaser, mortgagee, or lessee is bound to inquire whether the power was duly exercised or to see to the application of money, and is not affected by notice that the sale, mortgage, or lease was irregular, unnecessary, or improper. This gives comfort to commercial counterparties that they can rely on the Bishop’s statutory authority.

The Act primarily affects the Roman Catholic Bishop of Broome (as corporation sole) and the Roman Catholic Church within the Diocese of Broome, Western Australia. The Bishop receives all existing and future property, so the diocesan administration is the direct beneficiary of centralised control. But the Act also affects other parties. Trustees and former legal owners of church property within the diocese - such as the Roman Catholic Bishop of Perth, the Roman Catholic Bishop of Geraldton, and the Pious Society of Missions Incorporated of Broome - lost legal title to the specific parcels listed in the First Schedule on the commencement of the 1970 amendment (section 3 as amended). Any other person holding property on trust for the church within the diocese also lost that title; it passed automatically to the Bishop without compensation. Mortgagees and lenders are affected because the Bishop can now mortgage land freed from many trusts, making security more certain. The power to mortgage is expressly permitted under section 5(1)(b) to secure moneys borrowed to pay existing debts (including discharging existing mortgages) or to borrow lawfully after the Act. A lender dealing with the Bishop obtains the protection of section 5(3), meaning it need not investigate the Bishop’s compliance with internal church governance or trusts. Purchasers and lessees of church land in the Broome diocese benefit from a simpler process. They deal with a single entity (the Bishop) rather than multiple trustees or diocesan entities. They also receive the statutory protection in section 5(3), which reduces due diligence costs. They are not required to see that sale proceeds are applied properly. This makes land transactions more commercially viable. The State of Western Australia is affected through the Land Titles Office. Under section 6, the Registrar of Titles must register the vesting of land on application by the Bishop or his attorney, free of charge. This reduces state revenue slightly but also simplifies the registry by removing old fragmented owners. The Act also overrides certain older Western Australian statutes listed in the Second Schedule, thus removing their operation over Broome diocese lands. Parishioners and beneficiaries of church trusts may be affected indirectly. If land was subject to a trust for a specific purpose (e.g., a church on that land) the trust might be overridden by a sale under section 5, unless it was an express trust or condition against alienation. In practice, most church property is held on general church purposes trusts, which section 5(2) says are not express conditions against alienation. So the Bishop can sell church land and the proceeds need not be reapplied to the same location. This may affect local congregations if land on which a church stands is sold. The Act does not provide for compensation or consent of parishioners.

The Act confers significant rights on the Roman Catholic Bishop of Broome (as corporation sole) and imposes some duties, though duties are minimal. Right to hold property: Section 4 gives the Bishop power to purchase, hold, and take property. Section 3 vests existing property automatically. Right to sell, mortgage, and lease: Section 5(1) gives the Bishop the right to sell any land vested under section 3, to mortgage it, and to lease it for any term, with or without renewal, on such covenants as he thinks fit. This right overrides the Acts listed in the Second Schedule and most trusts, except express trusts or conditions against alienation. Right to appoint attorneys: Section 7 allows the Bishop to appoint one or more priests of the diocese as attorneys to exercise all or any of the powers under the Act, and to execute documents in the Bishop’s name. That delegates authority without amending the Act. Right to registration free of charge: Under section 6, the Bishop can apply to have the vesting registered and noted on the title, and to have subsequent transactions registered, without paying fees. That is a subsidy from the state administration. Protection from inquiry: Section 5(3) gives the Bishop the right to transact with purchasers, mortgagees, and lessees who cannot be required to inquire into the regularity or necessity of the sale, mortgage, or lease. That reduces the Bishop’s evidentiary burden. Duty to act subject to express trusts: Section 5(1) provides that the powers to sell and mortgage are subject to “any express trust or condition against alienation”. So there is a duty not to sell land burdened with an express restraint on alienation, unless the transaction falls within the mortgage exception (mortgage to pay existing debts secured on that land). But this duty is partly negated by section 5(2), which says that a trust for the use of the church generally is not an express trust against alienation. The Bishop also has a duty under section 5(1) to comply with the provisions of section 7 of the Roman Catholic Church Lands Act 1895 (whatever those provisions are; the Act does not reproduce them). That cross-reference imposes a continuing limitation. The Bishop also has a duty to ensure that documents executed on his behalf by attorneys are executed under his hand and seal in writing (section 7). On death of the Bishop, the Acting Bishop or Bishop-Elect has a duty to exercise the powers and can execute documents with the same effect (section 8). There is no duty to account to any person for the exercise of powers; the Act gives no oversight mechanism to the state or to parishioners. The only duties are those implied by the law of trusts, general property law, and the terms of any express trust that survives the Act.

The Act contains no express penalty provisions. There are no fines, imprisonment terms, or civil pecuniary penalties set out in its sections. Enforcement of the Act’s provisions relies on general property law remedies, equitable principles, and the jurisdiction of the Supreme Court of Western Australia. For instance, if the Bishop purports to sell land that is subject to an express trust or condition against alienation, the sale might be challenged by beneficiaries of that trust. But section 5(3) protects a purchaser who has no notice of the breach, so enforcement would only be possible before completion or against the Bishop personally. A beneficiary could seek an injunction to prevent a proposed sale that violates the Act, or seek damages for breach of trust. However, because the Act specifically overrides most trusts (other than express conditions against alienation), the scope for such claims is limited. The price for the Bishop’s broad power is that those with an interest in the land have limited remedies. The Act also does not provide a mechanism for the state Attorney-General or any government body to intervene to ensure proper administration of church property. Enforcement of the requirement under section 6 to register the vesting free of charge is not prescribed; it is a right exercisable by the Bishop, not an obligation. The amendment in 2006 (Land Information Authority Act) ensures electronic registration processes can apply, but that does not change the enforcement framework. The Second Schedule listing Acts that are overridden means that any enforcement provisions in those Acts (for instance, requirements for consent of the Bishop of Perth to a sale, or restrictions on alienation in the Roman Catholic Church Lands Act 1895) are no longer applicable to Broome diocese land. So the enforcement architecture of those older Acts is displaced. In practice, the only real check on the Bishop’s power is internal church governance: the Bishop’s own fiduciary duties under canon law and any restrictions imposed by the Holy See or the Australian Catholic Bishops Conference. The Act does not reference these external constraints. A potential enforcement gap exists: if the Bishop acts beyond his powers under section 5 (e.g., sells land subject to an express condition against alienation), the purchaser may still obtain good title under section 5(3) if the purchaser is not privy to the irregularity. The beneficiary would then be left with a personal claim against the Bishop, who may have no personal assets. That is a real risk for those who rely on trust restrictions.

The Act explicitly overrides six named statutes in the Second Schedule: the Roman Catholic Church Lands Ordinance 1858 (originally 22 Vict., No. 4), the Roman Catholic Church Lands Act 1895 (59 Vict. - Private), the Roman Catholic Church Lands Amendment Act 1902 (1 and 2 Edw. VII. - Private), the Roman Catholic Church Property Act 1911 (No. 36 of 1911), the Roman Catholic Church Property Act Amendment Act 1912 (No. 32 of 1912), the Roman Catholic Church Property Acts Amendment Act 1916 (No. 4 of 1916), and the Roman Catholic Geraldton Church Property Act 1925 (No. 9 of 1925). Section 5(1) begins “Notwithstanding anything contained in the Acts mentioned in the Second Schedule”, which makes the Bishop’s powers under the 1957 Act dominant over those earlier instruments. However, the Act does not repeal those Acts generally; it only overrides them for the land of the Broome diocese vested in the Bishop under section 3. They may still apply to church land in other dioceses (e.g., Perth, Geraldton). The Act also expressly refers to and incorporates some provisions of the Roman Catholic Church Lands Act 1895. Section 4 gives the Bishop power to exercise all powers conferred on the Bishop administering the Roman Catholic Church in Western Australia by that Act. Section 5(1) makes the Bishop’s sale and mortgage powers subject to the provisions of section 7 of the Roman Catholic Church Lands Act 1895. The reader would need to consult that Act to know what section 7 requires; it may impose conditions such as requiring a certificate of necessity or consent of some authority. So the 1957 Act does not fully free the Bishop from that 1895 law; it incorporates part of it. There is also an interaction with land registration statutes. Section 6 requires registration under the Transfer of Land Act 1893 or the Registration of Deeds Act 1856 as the case requires, and the application must be acted upon free of charge. This means the Act imposes a duty on the Registrar of Titles and the Registrar of Deeds. The 2006 amendment updated the reference to the Land Information Authority Act 2006 (which replaced the Transfer of Land Act in relation to the authority’s functions) but the substantive interaction remains. The Act also interacts with general trust law and the Property Law Act 1969 (WA) insofar as it overrides other restrictions. The Act does not purport to exclude the Trustees Act 1962 (WA) or the common law duties of trustees, but because the Bishop is not a trustee in the ordinary sense (he is a corporation sole holding property beneficially for the church), the Act effectively displaces many trustee obligations by giving the Bishop power to override trusts. There is also an implied interaction with the Roman Catholic Church (Property) Act 1911 (WA) mentioned in the Second Schedule; but that Act is overridden for Broome land. Other laws that might otherwise restrict dealings, such as the National Native Title Act 1993 (Cth) or the Aboriginal Heritage Act 1972 (WA), are not mentioned and would apply normally. Similarly, planning and environmental laws still apply to any development on the land.

The Act has been amended four times since its original enactment in 1957. Its original title was the Roman Catholic Vicariate of the Kimberleys Property Act 1957 (No. 32 of 1957). It received Royal Assent and commenced on 5 November 1957. The first amendment was the Roman Catholic Vicariate of the Kimberleys Property Act Amendment Act 1970 (No. 41 of 1970), which was a substantial reorganisation. That Act changed the short title to the Roman Catholic Bishop of Broome Property Act 1957 (section 1 as amended). It amended section 3 to vest property in the Vicar Apostolic for the time being (rather than in the Bishop of Perth etc.) and to clarify that the vesting occurred from the coming into operation of the 1970 Amendment Act. It inserted a new section 9, which substituted references to the Roman Catholic Vicariate of the Kimberleys and the Roman Catholic Vicar Apostolic with the Roman Catholic Diocese of Broome and the Roman Catholic Bishop of Broome. It also amended section 8 to refer to the Acting Bishop or Bishop-Elect. The Statutes (Repeals and Minor Amendments) Act 2003 (No. 74 of 2003) made a minor amendment to the Second Schedule, updating the title of one of the overridden ordinances (from “22 Vict. No. 4” to the modern citation style). The Land Information Authority Act 2006 (No. 60 of 2006) amended section 6 to replace “the Registrar of Titles” and “the Registration of Deeds Act 1856” with references to the Land Information Authority Act 2006 for the registration process. This was a machinery amendment to accommodate the creation of the Land Information Authority (Landgate). The Standardisation of Formatting Act 2010 (No. 19 of 2010) made non-substantive formatting amendments under section 30, inserting headings to the First Schedule (Parts I, II, III) and the Second Schedule to update the layout. The compilation table shows reprint 1 as at 7 February 2003, and reprint 2 as at 22 August 2014, which is the version we have. The Act has not been amended since 2010. There has been no wholesale review or repeal. The amendments have been administrative or name-changing rather than altering the fundamental vesting or powers.

The Act itself does not record any litigation history. The text of the legislation does not mention any court proceedings, and there are no annotations in the supplied source referencing decided cases. That does not mean no litigation has occurred; it may simply not be included in the compilation. In the absence of source material, we must not invent cases. However, we can infer likely areas of litigation that could arise. The most probable would be disputes over whether a trust is an “express trust or condition against alienation” within the meaning of section 5. If a third party sought to prevent a sale arguing that a trust for a specific parish church or a school was, by implication, a condition against alienation, the court would have to interpret section 5(2), which says that a trust for the use of the Roman Catholic Church in general or the diocese is not an express condition against alienation. Cases interpreting the Roman Catholic Church Lands Act 1895 might be relevant, but none are cited in the Act. Another potential area is disputes between the Bishop and the former owners (the Bishops of Perth and Geraldton and the Pious Society of Missions) over whether land was in fact within the Vicariate/Diocese and therefore subject to the vesting. A boundary dispute could arise. There is also potential for litigation over the validity of a sale made by an attorney appointed under section 7 where the appointment was not properly executed or where the attorney exceeded authority. The section says the appointment must be by instrument in writing under the Bishop’s hand and seal. If that formality is not observed, a purchaser might not get good title, but the protection in section 5(3) only applies to purchasers, mortgagees, or lessees of lands sold, mortgaged or leased under the provisions of section 5 - it does not extend to the validity of the attorney’s authority. So that could be litigated. A final area is the requirement in section 5(1) that the powers are subject to the provisions of section 7 of the Roman Catholic Church Lands Act 1895. If that section requires, say, a certificate from the Archbishop of Perth, and that certificate was not obtained, a mortgage might be challenged. But given the Act’s overriding effect, it is unclear whether that section 7 requirement remains substantive or merely formal. Without case law, the interaction is ambiguous.

Several provisions in this Act could catch out the unwary. The first is the definition of “property” in section 2. It includes “property of every kind whatsoever including legal and equitable, real and personal property, and choses in action”. This is very broad. It means that not only land but also bank accounts, shares, intellectual property, and rights under contracts held by or for the Roman Catholic Church within the Diocese of Broome are now vested in the Bishop as corporation sole. A third party dealing with a local parish or a school that holds an asset on trust might find that the Bishop, not the local entity, has the power to dispose of it. The second gotcha is the effect of section 5(2). Many church properties are held on trusts that say “for the use of the Roman Catholic Church in the Kimberleys” or similar. Section 5(2) explicitly says such a trust is not an express condition against alienation. So a parish that assumed the land could never be sold because it was dedicated to church purposes may discover the Bishop can sell it over their objections. The only protection is an “express trust or condition against alienation” - a term likely requiring plain words forbidding sale, mortgage, or lease. Most older church documents will not contain such explicit language. The third gotcha is the protection in section 5(3). It says a purchaser, mortgagee, or lessee is not bound to inquire into whether the power was duly and regularly exercised, and is not affected by notice that the sale is irregular, unnecessary, or improper. This means that even if the Bishop has breached his duties under canon law or internal church governance, a third party who does not know of the breach gets good title. A local parish that learns of a proposed sale and tries to stop it by telling the purchaser will likely fail because the purchaser is not affected by that notice. The only remedy is to get an injunction before settlement. The fourth gotcha is the tenuring of the 1970 amendment. Section 3 states that the vesting of the specific lands in the First Schedule and all other property occurred from the coming into operation of the 1970 Amendment Act. That means for 13 years, from 1957 to 1970, the Act was perhaps ineffective because the vesting was not automatic until 1970. Any dealing before 1970 may have had to comply with the older Acts. The fifth gotcha is the cross-reference to section 7 of the Roman Catholic Church Lands Act 1895. That section is not reproduced, and it may impose conditions (such as requiring the consent of the Bishop of Perth or a vote of the clergy). Failure to comply could render a sale voidable, though the protection in section 5(3) may not extend to this condition. The sixth gotcha is that the Act only applies to property situated within the Roman Catholic Vicariate of the Kimberleys, now the Roman Catholic Diocese of Broome. There may be boundary disputes over which land is within the diocese, especially land on the edges near the Diocese of Geraldton or the Diocese of Darwin. If the Bishop of Broome sells land that is actually within the Diocese of Geraldton, the sale may be invalid for want of jurisdiction.

Compliance with the Act is primarily a matter for the Roman Catholic Bishop of Broome and his attorneys. The Act imposes few positive obligations, but careful steps should be taken to ensure validity of transactions. For the Bishop, the first step is to identify all property vested in him under section 3. This includes not just the listed Certificate of Title parcels in the First Schedule, but “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”. The Bishop should conduct an inventory of all land, bank accounts, and other assets held by parishes, schools, and diocesan agencies. Where land is involved, the Bishop should apply to the Western Australian Land Registry under section 6 to have the vesting registered and noted on each title. This application can be made by the Bishop or his attorney, and is free of charge. The application should reference the Act and the relevant Certificate of Title. Even though the vesting is automatic and indefeasible, registration protects the Bishop’s title and simplifies future dealings. If the Bishop wishes to sell, mortgage, or lease land under section 5, he must ensure that there is no “express trust or condition against alienation” affecting that particular land. He should review the trust instruments (if any) under which the land was originally held. If the trust states “this land shall not be sold” or “this land shall not be mortgaged”, then the power in section 5 is blocked, except that section 5(1)(b) allows mortgage to pay off existing debts secured on that land. The Bishop should obtain legal advice on whether the trust language qualifies as an express condition against alienation. If the land is subject only to a general church purposes trust, section 5(2) provides that is not such a condition, so the power can be exercised. When selling, the Bishop should execute the transfer in his corporate name “The Roman Catholic Bishop of Broome” (or the old name if still on title but updated per section 9). He should affix the common seal. If he appoints an attorney under section 7, the appointment must be by instrument in writing under his hand and seal, appointing one or more priests of the diocese. The attorney can then execute documents in the Bishop’s name. The Bishop should keep a register of appointments and revocations. On the death of the Bishop, the Acting Bishop or Bishop-Elect (duly elected by the consultors of the diocese) steps into the powers under section 8 and may execute documents. The incoming Bishop should ensure that the consultors hold an election and document the appointment, so that third parties have evidence of authority. For a purchaser, mortgagee, or lessee dealing with the Bishop, compliance is simpler. They can rely on the Bishop’s statutory authority under section 5 and need not investigate internal church governance. However, a prudent party should still request a copy of the Bishop’s common seal and a certificate that no express trust or condition against alienation exists. While section 5(3) protects against having to inquire, it is prudent to have a representation from the Bishop to that effect. The party should also check that the property is within the boundaries of the Diocese of Broome; if not, the Act does not apply and other laws govern. Finally, because the Act incorporates section 7 of the Roman Catholic Church Lands Act 1895, the Bishop should ascertain what that section requires and comply with it to avoid any latent defect. The Roman Catholic Church Lands Act 1895 is a private Act and may be difficult to locate; the Bishop should ensure his legal advisors obtain a copy.