Royal Society for the Welfare of Mothers and Babies’ Incorporation Act 1919

The central concept is statutory incorporation. Rather than incorporating under a general law such as the Associations Incorporation Act (which did not exist in New South Wales in 1919), this Act creates a specific statutory body. The entity is not a government agency; it is a private body with a public purpose, endowed once from public funds and thereafter self-funding. The Act creates a distinction between the members (who collectively form the body corporate), the council (which manages the business and property), and the officers appointed by the council. The council holds custody of the common seal (section 13) and a majority of council members present at a duly constituted meeting may use or direct its use. The concept of “perpetual succession” means the body continues regardless of changes in membership. The second core concept is the vesting of property: the Act transfers all assets of the unincorporated society without a separate conveyance, subject to any express trusts on that property. This is a statutory novation of property interests. The objects in section 8 are not merely aspirational; they define the limits of the body corporate’s lawful activities. Anything done outside those objects may be ultra vires. Because the Governor can add further objects by proclamation (section 8(3)), the scope can expand without parliamentary scrutiny. The by-law making power in section 11 is broad. It covers membership, council elections, appointment and tenure of officers, branches, meetings, accounts and audit. The by-laws themselves are delegated legislation, published in the Gazette, but the Act does not require them to be tabled in Parliament or disallowable. That means the internal governance rulebook can be changed by the council with only Gazette publication. The limited liability of council members is another key concept. Section 15 provides that members of the council are only liable for their own receipts, acts, neglects or defaults, and not for those of co-members, agents or depositaries, unless the loss happens through their own wilful default. This is a statutory limitation on the fiduciary duties that would otherwise apply to persons managing property held on charitable trusts. The concept of “wilful default” is a high threshold, requiring deliberate misconduct or recklessness. The effect is to insulate council members from personal liability for ordinary negligence or poor investment outcomes. Finally, the Act deals with the validity of acts done by persons whose election or appointment was irregular. Section 12 allows the council to determine by resolution whether such an election or appointment is good or bad. If determined bad, the vacancy may be filled under the Act or by-laws, but any acts done by the officer in the meantime remain valid. This protects third parties who rely on office holders, but also creates a mechanism for the council to retroactively ratify or invalidate elections, which could entrench a faction.

The Act directly affects the members of the Royal Society for the Welfare of Mothers and Babies at the time of its passing and all persons who later become members under the by-laws (section 3). Those members collectively constitute the body corporate and presumably have voting rights under the by-laws. The Act also affects the council members, who bear governance responsibility with limited personal liability. Officers, servants and committees appointed by the council are subject to the by-laws. The beneficiaries of the society’s work are expectant mothers and children up to school age, as set out in section 8(1) and (2). The endowment in section 4 reduces the Consolidated Revenue Fund, affecting all New South Wales taxpayers. The amount of two thousand pounds in 1919 would have purchasing power many times that sum today, but it was a one time payment, not an ongoing subsidy. The Governor of New South Wales is affected by section 7 (approval required for disposal of real property) and section 8(3) (power to add objects by proclamation). The Governor in Council exercises these powers on advice, meaning the executive government has a veto over real property transactions and can unilaterally expand the society’s purposes. Trustees who held property for the unincorporated society are affected by section 6: their property is transferred to the body corporate unless forfeiture would result, in which case they hold on trust for the body corporate. The public at large is affected by the society’s activities, which may reduce infant mortality and improve maternal health, but also by the society’s privileged status as a statutory corporation with limited accountability. The Act does not give the public rights to inspect accounts or attend meetings unless the by-laws so provide. No general oversight body (e.g., the Attorney General, the Charities Commissioner) is given a statutory role under this Act, although the general law of charities and trusts would still apply. The by-laws are published in the Gazette, which provides limited public notice. Property counterparties (purchasers, lessees, mortgagees) are affected because any transaction involving real property requires the Governor’s approval (section 7). That adds a precondition and potential delay, but also provides a degree of state oversight that may reassure counterparties. The Act may also affect other charities providing similar services. Incorporation by private Act gives this society a bespoke governance framework that may differ from general charities law, potentially creating a competitive advantage if the society can operate under more flexible or less burdensome rules.

The body corporate has the right to sue and be sued in its corporate name (section 3). It has the right to acquire, hold and enjoy lands, buildings, hereditaments, chattels and personal property (section 7). It may also sell, grant, convey, demise or otherwise dispose of any property, either absolutely or on lease or by way of mortgage, but the proviso to section 7 requires the approval of the Governor for any dealing with real property. This is a significant constraint on the council’s freedom to manage assets. The body corporate also has a duty, under section 6(2), to hold, manage and deal with any property affected by an express trust subject to and in conformity with that trust. This means the society cannot use trust property for purposes outside the trust, even if those purposes are within the section 8 objects, unless the trust permits. The council has the duty to govern and carry on the body corporate and its business and property, subject to the by-laws and the Act (section 9). The council also has the right to invest the funds of the body corporate in such ways as trust moneys may be invested. That is a reference to the trustee investment powers under general law or the Trustee Act, not a broader power. The council may appoint officers, servants and committees as required by the by-laws (section 10). Members have the right to participate in the appointment of the council and in decision making as set out in the by-laws, but the Act itself gives them no specific rights other than being the constituent members of the body corporate. The council has the right under section 11 to make, alter and repeal by-laws and rules on the listed matters, provided they are not inconsistent with the Act. Those by-laws must be published in the Gazette and take effect from publication or a later date. The council holds the common seal and a majority of members present at a meeting may use it (section 13). Notice to or service upon the general secretary is deemed notice to or service upon the body corporate (section 14). This is a practical provision that fixes the secretary as the point of legal service. Council members have the right to be liable only for their own acts, receipts, neglects or defaults, and not for those of co-members or agents, and not for loss unless through their own wilful default (section 15). This section also protects them from liability for the insufficiency or deficiency of any stocks, funds or securities. The Act does not impose any duty on the body corporate to report to Parliament, to the public, or to any regulator, apart from the publication of by-laws. There is no requirement for annual accounts to be tabled or audited by an external body unless the by-laws require it (section 11(1)(e) mentions accounts and audit as a by-law matter). The body corporate has the right to hold property without the limitations that apply to unincorporated associations, such as the need for trustees to hold legal title separately.

The Act contains no penalty or offence provisions. There are no fines, imprisonment terms or infringement notices for breach of the Act or the by-laws. Enforcement of the Act therefore relies on general law mechanisms. If the council acts beyond its powers (ultra vires), members or the Attorney General may seek injunctive relief or a declaration from the Supreme Court. Misapplication of trust property could give rise to proceedings for breach of trust, but section 15 significantly limits the personal liability of council members. Only “wilful default” exposes them to personal loss. Ordinary negligence, poor investment decisions or reliance on a dishonest agent would not trigger personal liability. This creates a low accountability environment. The Crown (the State) could theoretically enforce the Governor’s approval requirement under section 7, but the Act does not specify a penalty for disposing of real property without approval. A transaction without approval might be voidable or void, but that would be determined under property law, not under a penalty provision. The by-laws may contain internal disciplinary provisions, such as suspension or expulsion of members, but the Act does not authorise fines or other sanctions beyond those internal remedies. The absence of statutory penalties means that the primary enforcement risk is reputational or civil. The society’s donors and beneficiaries could withdraw support if governance fails. The lack of a statutory reporting obligation reduces transparency, making it harder for interested parties to detect mismanagement. The only public document required is the by-laws published in the Gazette. There is no obligation to file annual returns, financial statements or lists of office holders with any public registry. This is a very light touch regulatory framework compared to modern charities or not for profit corporations. The Act was passed in 1919 when statutory regulation of charities was sparse. That legacy continues. The repeal of section 5 removed whatever that section contained, but no enforcement mechanism was introduced to replace it. Overall, the enforcement architecture depends almost entirely on the general law of trusts and corporations, combined with the society’s own by-laws, and on the willingness of members or the Attorney General to go to court.

The Act sits alongside the general law of trusts and charities. Section 6(2) expressly preserves the operation of any express trust affecting the property vested in the body corporate. This means that if a donor gave money to the unincorporated society for a specific purpose (e.g., a particular hospital or a named fund), that trust continues and the body corporate must comply with it. The body corporate’s investment power under section 9 is limited to the ways trust moneys may be invested, which imports the Trustee Act (or its predecessor) as a constraint. The Act does not exempt the body corporate from the general law of charities, including the jurisdiction of the Supreme Court and the Attorney General as parens patriae. The by-law making power in section 11 is expressly subject to the Act, so by-laws cannot override the statutory objects or the Governor’s approval requirement. The Act interacts with real property law and conveyancing practice: a purchaser of real property from the society would need evidence that the Governor’s approval was obtained under section 7. The Act does not override the general law on capacity of corporations to hold land, but section 7 specifically empowers the council to acquire, hold and enjoy lands. The interaction with the Health Legislation Amendment Act 2003 is confined to section 11(4), which preserved any Governor made by-laws in force at the commencement of that amendment. That suggests that at some point the Governor had made by-laws for the society, perhaps under a broader power, and the 2003 amendment regularised their continuation. The Act does not interact with the Corporations Act 2001 (Cth) because the body corporate is created by state legislation and is not a company under that Act. It is not a public authority or instrumentality of the Crown, so it is not bound by public sector governance requirements unless a specific statute says so. The Act may interact with the Charitable Fundraising Act (if any) or other New South Wales laws regulating appeals to the public, but those are not mentioned in the instrument. The Act’s reference to “Consolidated Revenue Fund” in section 4 is a standard reference to the state’s main public account. The appropriation in section 4 is a specific appropriation, meaning it does not require further parliamentary authority to be paid. There is no interaction with federal law except insofar as the society’s income tax exempt status would be determined by general principles of charitable tax exemption under the Income Tax Assessment Act. The Act itself does not grant tax exemption. Finally, section 12’s validation of irregular elections interacts with the general law of meetings and elections; it gives the council a broad power to determine the validity of its own composition, which may be challenged only on grounds of bad faith or procedural unfairness.

The Act has been amended twice. Section 5 was repealed by Statute Law (Miscellaneous Provisions) Act 1983 No 153, Schedule 1. The original content of section 5 is not stated in the current text. It may have dealt with a matter that became obsolete or was dealt with elsewhere. Section 11 was amended by the Health Legislation Amendment Act 2003 No 52, Schedule 5[1] to [4]. The 2003 amendments inserted subsection (4), preserved Governor made by-laws in force immediately before the commencement of that amendment, and made consequential changes to the numbering and cross references. The 2003 Act also repealed a subsection (iii) of section 11(2) (the text shows “(iii) (Repealed)”). The original section 11(2)(iii) likely required by-laws to be tabled in Parliament or approved by the Governor or some other body; its repeal removed that requirement. The effect is that by-laws now only need to be published in the Gazette and take effect from publication or a later date specified. This is a significant deregulatory move: it removed a layer of external oversight. The 2003 amending Act was primarily a health legislation omnibus bill, indicating that the society’s governance was considered within the health portfolio. The amendment history is sparse, reflecting the Act’s long life with minimal change. The Act has not been amended to add modern governance requirements such as conflict of interest provisions, whistleblower protections, or financial reporting obligations to a regulator. There is no evidence of any consolidation or reprint, but the version provided appears current. The Act remains in force with its original structure largely intact over a century later.

The Act itself does not cite any cases, and there is no publicly prominent litigation that is commonly associated with this specific incorporation statute. This is unsurprising for a private Act incorporating a charity. Most legal disputes involving the society would likely have arisen under the general law of trusts or contract, not under the Act itself. The limitation of liability provision in section 15 may have been tested in litigation concerning breach of trust or negligence by council members, but no such case is recorded in the source. The validation provision in section 12 (irregularity in elections) may have been used internal to the society, but no court decision is noted. The Governor’s approval requirement under section 7 could theoretically give rise to litigation about whether a transaction without approval is void, voidable or merely unenforceable, but again no case is specified. The Act’s long life without amendment suggests it has operated without generating significant legal controversy. However, the absence of reported litigation does not mean there have been no disputes; they may have been resolved internally or through confidential settlements. The Act’s continued existence is itself a fact of litigation history: it has not been repealed or replaced by a modern incorporation regime. Any litigant dealing with the society would need to determine the scope of its corporate powers and the validity of its by-laws under this Act. In interpreting the Act, a court would apply the usual principles of statutory interpretation, giving weight to the beneficial objects but also reading the limitations strictly (e.g., the proviso requiring Governor’s approval for real property dealings). The Act is short and relatively clear, so scope for interpretive litigation is limited.

Several features of the Act may catch practitioners off guard. First, the Governor’s power under section 8(3) to add further objects by proclamation is open ended. The objects can be expanded without parliamentary debate or public consultation. A governor’s proclamation has the force of law as if it were part of the Act. Any person relying on the society’s objects as limiting its activities must check the Gazette for current proclamations. Second, the limitation on council members’ liability in section 15 is very broad. It excludes liability for the acts of co-members, bankers, brokers and other depositaries, and excludes liability for insufficiency of securities. The only exception is loss through the member’s own wilful default. The phrase “wilful default” requires a conscious intention to do wrong or reckless disregard of duty. Simple negligence or a poor investment decision would not suffice. This means the council has little financial incentive to supervise agents or co members carefully. Third, real property transactions require the Governor’s approval (section 7). This is not merely a formality. The approval must be obtained before the transaction is completed. A contract entered into without approval may be unenforceable or void. A purchaser or mortgagee must verify that approval has been given. The Act does not state how approval is evidenced (e.g., by Gazette notice, instrument under seal, or executive minute). Fourth, the by-law making process under section 11 is entirely internal. By-laws take effect upon publication in the Gazette. There is no requirement for approval by the Governor, the Minister, or Parliament. The repeal of subsection (iii) removed any such requirement. This means the council can alter membership rights, voting procedures, or financial controls simply by publishing a by-law. Fifth, the validation of irregular elections under section 12 gives the council power to retroactively ratify or invalidate its own composition. This could be used to entrench a particular faction or to remove a member of the council without a proper election challenge process. A member who suspects electoral irregularities must bring the matter to the council, which can then determine it; there is no external tribunal or court required in the first instance. Sixth, the service provision in section 14 means that any legal document served on the general secretary binds the body corporate. If the secretary is not available or is an honorary officer with limited office hours, a claimant may still achieve effective service by delivering to that person. There is no requirement for a registered office. Seventh, the investment power in section 9 is limited to ways trust moneys may be invested. That is a conservative power, typically confined to authorised trustee investments. If the council wishes to invest in equities, derivatives, or alternative assets, it must consider whether those are within the scope of trust moneys investments under the Trustee Act. Failure to comply could result in the investment being ultra vires. Eighth, the Act contains no sunset clause, no review provision, and no obligation to modernise governance. It remains a 1919 era statute. Practitioners should not assume that modern corporate governance standards apply unless the society’s by-laws adopt them.

Compliance with the Act requires attention to several specific obligations and restrictions. The council must ensure that all dealings with real property (sales, leases, mortgages, grants) have the prior approval of the Governor. The approval should be obtained in writing, and the council should retain a record of the approval with the title documents. The council should also ensure that the property is dealt with in accordance with any express trusts affecting it (section 6(2)). Before disposing of trust property, the council should consider whether the trust permits the disposal and whether the proceeds will be held on the same trusts. The council must invest the body corporate’s funds only in ways that trust moneys may be invested. This means the council should familiarise itself with the current trustee investment powers under the Trustee Act and any relevant regulations. If the council wishes to invest in a manner not authorised for trustees, it may need to seek a variation of trust or a court order, or consider whether the by-laws or objects provide an alternative mandate. The council must hold the common seal securely and ensure that it is used only at a duly constituted meeting where a majority of members present resolve to use it (section 13). The council should maintain minutes of meetings recording the decision to affix the seal. The council should ensure that by-laws are made in accordance with section 11: they must not be inconsistent with the Act, they must be published in the Gazette, and they take effect from the date of publication or a later date specified. If the council wishes to change by-laws, it must follow the same procedure. The council should also check whether any by-laws made by the Governor before the 2003 amendment are still in force under section 11(4) and ensure they are complied with. The council must appoint officers, servants and committees as required by the by-laws (section 10). The general secretary is the point of service for legal notices; the council should ensure that the secretary is known and accessible, and that the secretary’s contact details are maintained. If the secretary is an honorary position with limited availability, the council should consider providing an alternative address for service in the by-laws. Council members should be aware of their limited liability under section 15. While this provides protection, it does not exempt them from liability for their own wilful default. Council members should act honestly, avoid conflicts of interest, and document their decision making processes to demonstrate that they are not acting with wilful disregard. The council should also be aware that the section 8 objects define the lawful activities. Any activity that falls outside those objects (including objects added by Governor’s proclamation) is ultra vires. The council should therefore obtain and maintain a current list of Governor’s proclamations adding objects. The council should regularly review the by-laws to ensure they are up to date and published in the Gazette. If any by-laws are inconsistent with the Act, they are invalid and should be repealed. Finally, the council should maintain proper accounts, as required by the by-laws (section 11(1)(e)). Even though the Act does not mandate an external audit, best practice would be to have accounts audited annually and made available to members to reduce the risk of mismanagement or disputes. Membership records should be kept, and elections should be conducted in accordance with the by-laws to avoid reliance on the irregularity validation provision in section 12.