The Act No. 391 Amendment Act 1925

Allowance. The central concept inherited from the Principal Act. An allowance is the Governor’s grant of leave to dispose of land held on trust for religious purposes, issued under the Principal Act (the Act that abolished state aid to religion). The allowance includes a statement of trusts that specifies the powers of disposition (e.g., whether the trustees may sell, lease, or mortgage the land) and the purposes to which the proceeds of any disposition must be applied (e.g., to support a particular church, school, or charity).

Amendment or variation. The Act uses these terms interchangeably to mean a change to an existing allowance, but strictly limited to the two matters stated in section 2: “the powers of disposition and the purposes to which proceeds of disposition are to be applied set out in the statement of trusts.” No other terms of the trust can be altered under this Act. The Governor’s power to amend or vary is subject to the same consent and conditions as the original power to allow an application under the Principal Act, meaning the same class of persons must consent and the same procedural hurdles apply (though the Amendment Act modifies those procedures slightly).

Statement of trusts. The document that, under the Principal Act, sets out the terms on which trustees hold the land. The amendment process directly changes this statement. The Act uses the term in the First Schedule and section 2. The statement is recorded in the certificate of title or separate document lodged with the Registrar of Titles under section 55 of the Transfer of Land Act 1915.

Governor. The Governor in Council (the executive) acts as the decision-maker. The Governor’s discretion is not unfettered: if no objections are lodged, the Governor must amend or vary in accordance with the application. The Governor may not amend or vary beyond what the application seeks (unless the applicant consents to a different amendment under section 5(3)(b)). The Governor may also refer objections for inquiry and report, but the Act does not specify who may be appointed or what procedures apply to such inquiries.

Non-consenting trustees. Trustees of the land who have not signed the application. They must be served with a copy of the application. If they are resident in Victoria, they have standing to object. The Act does not give them veto power, only notice and an opportunity to object.

Objections. Any person (not just trustees or beneficiaries) may lodge an objection within one month of the last advertisement. There is no prescribed form for objections, nor any requirement to show standing or interest. This creates a low barrier for third parties to delay or block an amendment. The Minister must forward a copy of each objection to the applicant.

Conclusive evidence provision. Section 6(2) provides that publication of the amendment or variation in the Government Gazette “shall be conclusive evidence that all the provisions of this Act in respect of the application for such amendment or variation have been complied with.” This is a strong preclusion clause: once the Gazette is published, no court or tribunal can entertain a challenge based on alleged non-compliance with the procedural requirements of the Act (e.g., failure to give proper notice, incorrect service, missing consents). The only possible grounds for challenge would be matters going to the Governor’s power beyond those procedural preconditions (e.g., whether the amendment purportedly changes something outside the allowed scope of powers of disposition or purposes of proceeds).

Successive amendments. Section 10 permits multiple rounds of amendment. After the first variation, any further application treats the latest amended allowance as the original. This means the process can be repeated indefinitely, but each application must still comply with the consent and notice requirements. It also means that the chain of amendments must be traced if later land transactions occur.

The Act directly affects trustees of land that was the subject of an allowance under the Principal Act. These trustees are typically members of a religious denomination holding land for church, school, or charitable purposes under a trust that originated in the era before the abolition of state aid to religion. The trustees must either initiate an amendment (by consenting to the application) or be served with notice if they do not consent. Upon gazettal, they are deemed to hold the land on the amended trusts, meaning their fiduciary duties and obligations are updated.

The head or authorised representative of the denomination is the applicant. This person bears the primary compliance burden: completing the application form, obtaining the necessary consents, arranging advertising, serving non-consenting trustees, and lodging documents with the Minister and the Registrar of Titles. The application must be made “by and with the consent of the like persons as are mentioned in section four of the Principal Act.” Although that section is not reproduced, it likely requires the consent of the trustees and any persons entitled to minister in or occupy buildings on the land (as reflected in the First Schedule form). The applicant must also certify the names and addresses of all resident trustees and describe the buildings on the land.

Persons entitled to minister in or occupy a building on the land (e.g., clergy, school principals, or caretakers) must consent to the application and sign the form. If there are no such persons, the applicant must state that fact. Their consent is mandatory; without it, the application cannot proceed. They are also given notice if they do not consent (though the Act only requires service on non-consenting trustees, not non-consenting ministers or occupiers). Their consent is collected in the application form itself.

The Minister (responsible for administering the Principal Act) receives applications, forwards objections to the applicant, and likely liaises with the Governor’s office. The Act does not specify which Minister; in practice it would be the Minister for Lands or similar portfolio.

The Registrar of Titles must receive and retain the Government Gazettes containing the original and amended allowances. This integrates the trust variations into the Torrens system. The Act requires deposit within 14 days of gazettal. Failure to deposit does not appear to invalidate the amendment itself, but it would leave the land’s certificate of title with outdated trust information, creating potential confusion for future purchasers or encumbrancers.

Any person may lodge an objection. This includes neighbours, rival religious groups, historical societies, or individuals with no direct interest in the land. The low standing threshold means the process is susceptible to vexatious or strategic objections. The objector does not need to be served with any subsequent decision, but a copy of their objection is forwarded to the applicant.

Future purchasers or lessees of the land are indirectly affected because the amended statement of trusts determines what dispositions are permitted and what happens to the proceeds. The conclusive evidence provision protects them from later claims that the amendment process was procedurally defective, but they still need to rely on the accuracy of the public record.

Duty to apply in prescribed form. The applicant must use the form in the First Schedule. That form requires: identification of the original allowance, the head or authorised representative, the names of consenting trustees and persons entitled to minister or occupy, a list of all resident trustees, a description of buildings, the existing statement of trusts (powers of disposition and purposes), and the proposed amendments or variations. The form must be signed by the applicant, the trustees, and the ministers/occupiers. There is no provision for an incomplete application to be accepted.

Duty to advertise and give notice. Within one month of lodging the application, the applicant must advertise it at length in the Government Gazette and once in a newspaper circulating in the neighbourhood of the land. “At length” suggests the full text of the application or at least all material particulars. Additionally, the applicant must serve a copy of the application on any trustee of the land resident in Victoria who has not consented. The Act does not specify how service must be effected, but presumably personal service or post would be sufficient.

Right to object. Any person may lodge an objection at the Minister’s office within one month of the last advertisement. The Act does not require the objection to be in writing, but as a practical matter it would need to be recorded. No fee is mentioned. An objector has no further right to be heard unless the Governor decides to refer the objection for inquiry and report. The objector is not entitled to be notified of the Governor’s decision.

Governor’s duty to decide. If no objections are lodged, the Governor must amend or vary the allowance in accordance with the application. The word “shall” in section 5(2) makes this mandatory. If objections are lodged, the Governor has a choice: refer for inquiry and report, amend with the applicant’s consent (which may differ from the original application), or refuse. The Governor is not required to give reasons for the decision.

Trustees’ deemed holding. Section 7 deems the trustees to hold the land upon the trusts set out in the amended allowance upon gazettal. This is a statutory fiction: the trust is amended without the need for a court order or unanimous consent of all trustees. It binds even trustees who did not consent.

Duty to deposit with Registrar of Titles. Within 14 days of gazettal, if a certificate of title has already issued under the Principal Act, the applicant (or presumably the Minister or the Governor) must deposit a copy of the Gazette containing the amendment with the Registrar of Titles. If no certificate has issued, the amended allowance takes effect as if the last amended allowance were the original, and both the original and all amendments must be deposited together when the certificate later issues. The Act does not specify who is responsible for depositing, but as the applicant is the moving party, it falls on them.

Right to apply for further amendments. Section 10 allows successive applications. There is no limit on the number of amendments. Each application treats the most recent amended allowance as the original, so the process can be repeated indefinitely.

No right to appeal. The Act provides no appeal mechanism from the Governor’s decision (whether to amend, vary, or refuse). The only recourse would be judicial review on administrative law grounds, but the conclusive evidence provision would block challenges based on procedural non-compliance after gazettal. The Governor’s decision on the merits is likely unreviewable by courts because it involves a discretionary executive power not a justiciable dispute.

The Act contains no penalty provisions. It does not create criminal offences for non-compliance. The enforcement mechanisms are indirect and grounded in property law.

Failure to advertise or serve. If the applicant fails to advertise or serve non-consenting trustees within the one-month period, the application is arguably invalid, and any subsequent gazettal would be open to challenge before publication. However, section 6(2) makes the publication conclusive evidence that all provisions have been complied with. So if the Gazette is published, the applicant’s procedural failures become unassailable. The only window for a challenge is between the expiry of the objection period and the publication. That window is short and requires an objector to act promptly.

Failure to deposit with Registrar of Titles. The 14-day requirement in section 8 is not enforced by a penalty. If the applicant fails to deposit the Gazette copy, the amendment still binds the trustees under section 7, but the certificate of title will not reflect the updated trusts. This creates a gap between the legal trusts (as amended) and the registered title. A subsequent purchaser acquiring the land without notice of the amendment might argue they took free of the amendment if the title certificate did not disclose it, but the Torrens system under the Transfer of Land Act generally protects purchasers for value without notice of unregistered interests. This could lead to litigation between the trustees and the purchaser. The risk falls on the trustees to ensure the Register is updated.

Non-consent. There is no penalty for trustees or ministers who refuse to consent. Their refusal simply prevents the application from proceeding (since consent is required). Trustees who are served but do not object within the time limit lose their right to object; they cannot later challenge the amendment on procedural grounds.

False statements in application. The First Schedule requires the applicant to certify the names and addresses of all resident trustees and describe the buildings. Making a false statement could potentially attract general criminal liability for perjury or false declaration, but the Act does not create a specific offence. The conclusive evidence provision would not protect against fraud because the provision only covers compliance with the Act’s procedural provisions, not the veracity of the application content.

Objections without merit. There is no cost or penalty for lodging a frivolous objection. This creates a risk of strategic use: a neighbour or competitor could object simply to delay the process, forcing the applicant to either negotiate or wait for the Governor’s discretion. The Governor could refer the objection for inquiry, but the Act does not allocate costs for that inquiry.

Governor’s liability. The Governor is immune from suit in the ordinary course, but the Act does not expressly exclude Crown liability for wrongful refusal or amendment. A person aggrieved by an ultra vires amendment (e.g., altering matters beyond powers of disposition) might seek judicial review quashing the amendment, but only if they act before the Gazette is published or if the defect goes to the Governor’s power rather than procedural compliance.

Principal Act (Act No. 391). The Amendment Act is expressly to be read and construed as one with the Principal Act. This means that definitions, procedures, and any limitations in the Principal Act apply unless varied. Section 9 of the Amendment Act extends section 10 of the Principal Act (which is not reproduced) to this Act “with such alterations modifications and substitutions as are necessary.” Section 10 of the Principal Act presumably deals with matters such as the effect of the allowance, registration, or the Governnor’s power to allow applications generally. The amendment process is grafted onto that existing framework.

Transfer of Land Act 1915, section 55. This provision governs the depositing of documents declaring trusts of land under the Torrens system. The Amendment Act requires that the Government Gazettes containing allowances and amendments be deposited under that section. This means the trust statements become part of the Register and are subject to the rules of the Transfer of Land Act regarding inspection, priority, and indefeasibility. If the deposited documents conflict with the certificate of title, the Torrens system’s priority rules would apply.

General trust law. The Amendment Act creates a statutory mechanism for varying trusts without a court order under a trust instrument or the Settled Land Act or Trustee Act. It overrides the general rule that a trust can only be varied with the consent of all beneficiaries (if they are sui juris) or by court order under the variation of trusts jurisdiction. However, the power is limited: only the powers of disposition and application of proceeds can be varied. The core beneficial interests (who benefits from the land or proceeds) likely remain as set in the original trust. The Act does not expand the trustees’ powers beyond those two matters. If the trustees wish to change any other term, they must rely on general law or seek a separate statutory power (if any exists).

State Aid to Religion Abolition Act. The header of the Amendment Act states it is “An Act to provide for the Amendment or Variation of Allowances under the Act of the Parliament of Victoria providing for the Abolition of State Aid to Religion and Numbered 391”. The Principal Act’s long title suggests it originally dealt with the severance of state funding to religious bodies and the disposal of land no longer needed for those purposes. The Amendment Act thus operates within that historical context: it permits adaptation of trust arrangements that were created at a time when the state was disentangling from religious land holdings. Modern uses of the land may diverge from original intentions, and the amendment process allows some flexibility without returning to court.

Real Property Act and general land law. The amendment process does not create new titles; it only modifies the terms of an existing trust. Any disposal of the land must still comply with the Transfer of Land Act and any restrictions in the certificate of title. The amendment does not change the ownership of the land, only the trustees’ powers.

Freedom of religion and anti-discrimination laws. The Act itself does not touch these areas. However, the trust that is amended may be for a particular denomination. The amendment process could be used to alter purposes from one religious use to another, or from religious to secular charitable purposes (within the limits of the original trust). The Act does not contain any secularisation or anti-discrimination constraint; it is purely procedural.

According to the endnotes, there are no amendments made to the Amendment Act by Acts and subordinate instruments. The version as at 26 February 2003 is the original version, unchanged since its assent and commencement on 21 September 1925. The explanatory details section records no entries.

This stasis is notable. The Act has survived nearly a century without amendment, even though the Principal Act and the underlying policy of state aid abolition are long obsolete. The legislative inertia may reflect that the Act is rarely used, or that when used, it works well enough for the narrow purpose it serves. Alternatively, it may be that the land to which the Principal Act applies has largely been disposed of or converted, leaving few remaining allowances to amend.

The absence of amendments also means that the Act has not been integrated with later land legislation or modern administrative law reforms. For example, the Victorian Civil and Administrative Tribunal (VCAT) now handles many land-related disputes, but this Act still channels decisions through the Governor in Council, with no review option. The Transfer of Land Act has been replaced or amended many times since 1925, but this Act still references the 1915 version specifically. In practice, the Registrar of Titles now operates under later acts (the Transfer of Land Act 1958 and subsequent), but the “section fifty-five” reference would likely be construed as a reference to the equivalent provision in the current legislation by virtue of the Interpretation of Legislation Act 1984.

The conclusive evidence provision (s 6(2)) has never been modified or qualified. If it were challenged on constitutional grounds (e.g., ousting judicial review), a court might read it down, but the Act itself has never been updated to address such concerns.

The Act itself provides no references to litigation. The explanatory details state “No entries at date of publication.” The table of amendments shows no amendments, suggesting no Parliament has seen fit to clarify or adjust the Act in response to court decisions.

Nevertheless, one can infer likely litigation contexts. The conclusive evidence provision would almost certainly have been tested if anyone tried to challenge a gazettal on procedural grounds. In other Victorian contexts, similar “conclusive evidence” clauses in land legislation have been interpreted strictly but not as insurmountable where the decision was ultra vires. A challenge could also arise regarding the scope of “powers of disposition and the purposes to which proceeds of disposition are to be applied.” For example, if the Governor purported to amend the trust to allow the land to be sold and proceeds paid to a non-religious charity that was not contemplated by the original trust, a beneficiary might argue that this goes beyond merely changing “purposes” and instead changes the identity of the beneficiaries. Such a dispute would require interpretation of the original allowance and the Principal Act.

Another potential area of litigation is the requirement that the application be made “by and with the consent of the like persons as are mentioned in section four of the Principal Act.” If the Principal Act is missing or its section 4 ambiguous, there could be disputes about whose consent is needed or whether consent of all trustees is mandatory or only a majority. The First Schedule form suggests that all trustees must sign or at least that the applicant must state the names of all resident trustees, but non-consenting trustees are served with notice. The Act does not say that unanimous consent is required; it says the application shall be made “by and with the consent of the like persons.” That could mean the application itself must be made with the consent of those persons, so each must affirmatively consent. But then section 4 requires service on non-consenting trustees, implying that some may not consent yet the application can still proceed. This tension might have been litigated.

The lack of reported case law in the source (and likely in the public domain) suggests that either the Act is rarely used, or disputes are resolved without litigation, perhaps because the land value is low or the parties are religious bodies that prefer private resolution. However, a thorough search of Victorian Supreme Court decisions may reveal unreferenced cases. The strict output format prevents us from speculating beyond the source, so we must note that no litigation is recorded in the Act itself.

Mandatory amendment if no objections. Section 5(2) says if no objection is lodged, the Governor “shall” amend or vary the allowance in accordance with the application. This eliminates any residual discretion to refuse a non-objected application. An applicant who satisfies all procedural requirements is guaranteed success. However, the objector can be any person, so even a single vexatious objection shifts the Governor from “shall” to “may” and opens the door to refusal or modification. This creates a perverse incentive: those who want to block an amendment may lodge a bare objection, even without merit, to give the Governor discretion to refuse.

Conclusive evidence clause traps. The conclusive evidence provision in section 6(2) is a double-edged sword. For the applicant, it provides security: once the Gazette is out, no one can argue the notice was insufficient or the application was defective. For trustees and third parties, it means that if the Gazette is published despite procedural defects, the amendment is still valid and cannot be challenged on that basis. This risks abuse: a dishonest applicant could omit required steps, ensure no one objects, and secure a gazettal that cures all defects. Non-consenting trustees who were not properly served would have no remedy after gazettal. The only safeguard is the one-month objection window, but if objectors do not know about the application (due to defective notice), they cannot object.

Who is a non-consenting trustee? The Act requires service on any trustee resident in Victoria who has not consented. But what if a trustee consents initially but later withdraws? The Act does not address revocation of consent. If a trustee signs the application but later changes their mind before the Gazette, can they withdraw consent? The Act is silent. A trustee who withdraws consent after the application is lodged but before the objection period expires might try to lodge an objection, but the Act says “any person” may lodge objections, so that trustee could object (even though they consented earlier). The Governor would then have discretion to proceed or not.

14-day deposit deadline with no extension. Section 8 imposes a strict 14-day period from gazettal to deposit the Gazette copy with the Registrar of Titles. There is no provision for extension, even if the 14th day falls on a weekend or public holiday. Failure to deposit means the certificate of title remains outdated. The Amendment Act does not allow the deposit to be made later by direction; a late deposit would be of no legal effect unless the Registrar of Titles exercises a discretion to accept it as a supplementary document. The trustees risk having two inconsistent records: the deemed trust under section 7 and the registered trust on the certificate. This can cause confusion for any subsequent dealings with the land.

Multiple amendments and chain of documents. Section 10 allows repeated amendments. Over time, the chain of Gazettes becomes long. If one Gazette is lost or not deposited, the chain is broken. The Act requires that the original and all amendments be deposited when a certificate of title is first issued after any amendments. If a certificate was issued before any amendments, only the latest amendment must be deposited, but the original and any intermediate amendments are not retained on the Register. This creates an incomplete record. A party later relying on the title may not know the full history of the trust.

No form for objections or inquiries. The Act prescribes forms for applications (First Schedule) and amendments (Second Schedule) but not for objections or for the Governor’s referral to inquiry. This leaves procedural gaps. The Governor could appoint any person to conduct an inquiry, with no rules regarding evidence, hearings, or rights of participation. An objector might be excluded entirely. The report is not required to be made public. This lack of transparency could raise administrative law concerns but falls within the realm of executive discretion.

Interaction with modern trust variation legislation. Since 1925, Victoria has enacted the Trustee Act 1958 and the Variation of Trusts Act 1994. These provide alternative mechanisms for varying trusts, usually with stronger safeguards (court approval, consent of beneficiaries, or judicial discretion). However, this Amendment Act may still be used as a cheaper, faster option if the trust relates to land within the Principal Act and the desired change is limited to powers of disposition and proceeds. But using this Act may lock out other variations that could be combined in a single court application. Practitioners may inadvertently narrow their options by choosing this statutory route.

Compliance with the Act involves a step-by-step process that, while linear, has several traps that can derail an application or create ongoing title defects.

Step 1 - Confirm that the land is subject to an allowance under Act No. 391. This requires examining the original allowance and any previous amendments. The allowance likely appears in an old Government Gazette or as a document held by the Registrar of Titles. If no allowance can be found, the Act does not apply and the land’s trust is governed by its deed or by general law.

Step 2 - Identify the correct applicant. The applicant must be the “head or authorised representative of the denomination known as...”. This would typically be the head of the religious body (e.g., bishop, moderator, president) or a person delegated in writing. The applicant must also obtain the consent of the trustees and any persons entitled to minister in or occupy a building on the land. If there are no such persons, that must be stated in the application.

Step 3 - Prepare the application in the form of the First Schedule. The schedule requires: the name of the denomination, the date and particulars of the existing allowance, the names and addresses of all resident trustees (whether they consent or not), a description of buildings, the existing statement of trusts (both powers of disposition and purposes), and the proposed amendments. The application must be signed by the applicant, all consenting trustees, and all consenting ministers/occupiers.

Step 4 - Lodge the application with the office of the Minister (now likely the Minister for Lands or similar). There is no fee prescribed, but the Minister may require one under regulation. The date of lodging triggers the one-month clock for advertising.

Step 5 - Within one month of lodging, publish the application at length in the Government Gazette and once in a local newspaper. “At length” means the full text or at least all material parts, including the proposed changes. At the same time, serve a copy of the application on any trustee resident in Victoria who has not consented to the application. Service should be by a method that can be proven (e.g., registered post) in case an objection later claims non-service. Note that the Act does not require service on non-consenting ministers/occupiers, but they will have had the opportunity to withhold consent earlier, so their silence is arguably consent.

Step 6 - Monitor the objection period. The objection period is one month from the last advertisement (presumably the later of the Gazette and the newspaper). During this period, any person may lodge objections at the Minister’s office. The applicant should check with the Minister regularly. If no objections are lodged, the applicant may later rely on section 5(2) to compel the Governor to amend in accordance with the application.

Step 7 - If objections are lodged, the applicant may need to negotiate with the objectors or with the Minister. The Governor may refer objections for inquiry; the applicant should be prepared to provide information and possibly attend an inquiry. The Governor may make a different amendment with the applicant’s consent, or refuse entirely. There is no right of appeal, so the applicant’s only recourse is to try again with a modified application.

Step 8 - Once the Governor decides to amend or vary, the amendment is made in the form of the Second Schedule and published in the Government Gazette. The applicant should obtain a certified copy of that Gazette. The solicitor should carefully check that the published amendment matches the application (or the agreed variation).

Step 9 - Within 14 days of gazettal, deposit a copy of that Gazette with the Registrar of Titles. If a certificate of title already exists under the Principal Act, this deposit is done under section 55 of the Transfer of Land Act 1915. If no certificate has yet issued, the amended allowance is treated as the original, and when a certificate is later applied for, both the original and the amendment Gazettes must be deposited together. The solicitor should ensure the deposit is made promptly and obtain a receipt or endorsement.

Step 10 - Record the amendment internally and update any trust documents. The trustees should note their new powers of disposition and the new purposes for proceeds. All future disposals must comply with the amended statement of trusts. If the amendment broadens powers (e.g., from selling only to full power to lease or mortgage), the trustees may need to update their investment or asset management strategies.

Ongoing compliance - If the trust needs further changes in the future, a fresh application must be made under the same Act, treating the most recent amended allowance as the original. Each new application must go through the same process, including new consent, advertising, and objection periods. No single application can combine multiple unrelated changes beyond the two subject matters allowed.

Practical tips: Engage a solicitor experienced in historic trust land. Request from the Minister a copy of any regulations or practice notes. Keep a diary of all deadlines: one month from lodging for advertising and service; one month from last advertisement for objections; 14 days from gazettal for deposit. Obtain a receipt for the deposit. If the land has been transferred or subdivided, confirm that the allowance still applies. If the land is no longer used for religious purposes, consider whether the Principal Act still has application; it may be that the land was removed from the Principal Act by earlier transactions.

The biggest risk is the conclusive evidence provision: once the Gazette is published, procedural errors are incurable. Therefore, every step must be done correctly before gazettal. Double-check all notices, advertisements, and service. Consult with the Minister’s office if in doubt. Do not assume that a missing consent can be later remedied. Obtain written consent from all required persons. If any person refuses to consent, the application cannot proceed unless that person is a “non-consenting trustee” who will be served - but the application still requires the consent of “the like persons as are mentioned in section four of the Principal Act.” That clause likely requires majority or unanimous consent; without knowing section 4, it is safest to obtain consent from all trustees and all ministers/occupiers. If that is impossible, consider whether a court variation under the Variation of Trusts Act is a better alternative.