The Perth Diocesan Trustees (Special Fund) Act 1944

Special Fund. The central object is the "Special Fund", defined in s 2 as the capital sum with accretions vested in The Perth Diocesan Trustees for or towards the support of the Anglican Church of Australia clergyman from time to time stationed at York pursuant to the provision in that behalf created by the will of Samuel Evans Burges, deceased, mentioned in the Preamble. The definition links the operative fund to a historical testamentary provision and to the Preamble recitals. The Act therefore treats the fund as a discrete corpus with a specified purpose: support of the York clergyman (s 2).

Trustees. The Act defines "Trustees" as The Perth Diocesan Trustees (s 2). The entity is the statutory corporate body that holds the Special Fund. The Act uses that corporate identity as the decision-maker to whom the discretionary power is given (s 3).

Annual payment and surplus. The Act’s operative provision, s 3, presumes an annual payment of £20 to the clergyman. It then identifies "surplus income" as income arising from the Special Fund remaining in the hands of the Trustees in any year after payment of the sum of £20. The Act does not define "surplus income" in detail, but the plain meaning is income in excess of the £20 distribution in a given year (s 3). The Trustees' statutory discretion applies to that surplus: in any year they may capitalise it or pay it to the clergyman (s 3).

Historical origin and investment constraints. The Preamble records that the cash surrender value of the perpetual charge in the will was fixed at £500 by a judicial Order on 19 April 1910 pursuant to the Redemption of Annuities Act 1909, that that sum was paid to the Diocesan Trustees, and that the Order required investment of the £500 in specified securities and provided that income to the extent of £20 per annum should be applied for the clergyman's benefit, with surplus capitalised and power for Trustees to draw on capital to make good deficiency (Preamble). Those historical constraints are recited in the Preamble but the Act itself confers the discretion to capitalise or distribute surplus income (s 3). The Preamble therefore supplies factual and legal antecedents; the Act makes a discrete statutory change to the treatment of surplus income.

Name change and terminology. The Act’s text and the compilation notes record later legislative name changes. The long-established "Church of England" references in the Preamble are not altered in that recital, but a subsequent statute changed the name to "Anglican Church of Australia". The Act’s operative definition of "Special Fund" and the operative provision use the modernised terminology "Anglican Church of Australia clergyman" (s 2; s 3; Notes 2, Compilation table). The compilation notes also state that references to the old currency are retained for historical interest (Note 3).

Scope and limits. The Act does not set conditions on the exercise of the Trustees' discretion, such as requiring reasons, minutes, accounting treatments, or consultation with beneficiaries. It does not alter the corpus, does not purport to amend the underlying will, and does not itself prescribe the investment vehicles for the capital, beyond reciting the earlier Order's investment instruction (s 3; Preamble). The practical effect is a statutory authorisation of a managerial choice by The Perth Diocesan Trustees as to surplus income treatment.

Primary decision-maker: The Perth Diocesan Trustees. The Act identifies The Perth Diocesan Trustees as the statutory corporate trustees (s 2). The Trustees are the actor who receives the Special Fund and to whom the statutory discretion is given (s 2; s 3). The Trustees carry the administrative responsibility to pay the £20 annual payment and to determine the disposition of any surplus each year.

Primary beneficiary: the Anglican Church of Australia clergyman stationed at York. The Special Fund is explicitly held for "or towards the support of the Anglican Church of Australia clergyman from time to time stationed at York" (s 2). The clergyman has a contemporaneous statutory interest in receiving the £20 payment each year; the clergyman may also, subject to the Trustees' discretion, receive surplus income if the Trustees elect to pay it (s 3).

Indirectly affected parties: historic landowners and successors, the standing committee, and diocesan entities. The Preamble recounts that the original perpetual charge was created by the will of Samuel Evans Burges and was charged on real property at York devised to his son, that an Order fixed a cash surrender value which was paid to Diocesan Trustees, and that earlier Acts transferred and renamed the corporate trustee body (Preamble; Notes). Those historical arrangements explain why the capital is in the hands of the Trustees; however the Act as enacted addresses only the disposition of the income of the Special Fund. Persons currently owning any land that was formerly charged are not directly affected by this statute, according to the Act text, because the Order extinguished the perpetual charge upon payment of the £500 and the Act now deals with how the income is treated (Preamble).

Potential administrative stakeholders: diocesan accountants, the clergyman’s household, and auditors. Because the Act gives the Trustees a yearly choice to capitalise surplus or pay it, the decision affects accounting, cashflow and budgeting for the clergyman and the Trustees. The Act does not stipulate accounting rules, the treatment of capitalised amounts for reporting, or any external audit requirement; those practices will therefore be governed by the Trustees' own governance frameworks and other applicable law beyond this Act (s 3).

Who does not gain new statutory rights. The Act does not create broad public entitlements, broader diocesan powers, or general investment powers beyond the pre-existing Order as recited in the Preamble. The only new statutory authority it supplies is the Trustees' discretion over surplus income (s 3). The Act contains no penalties, obligations on third parties, or expanded remedial rights for beneficiaries beyond the clergyman's existing £20 interest and the possibility of receiving surplus income if Trustees decide to pay it (entitlement mechanisms are limited to what the Act states; see s 3 and Preamble).

Statutory duties and financial obligation in the text. The Act presupposes and deals with the annual payment of £20 to the Anglican clergyman for the time being stationed at York. Section 3 is framed around the payment of that sum, noting surplus income "remaining in the hands of the Trustees in any year after payment to the Anglican Church of Australia clergyman for the time being stationed at York of the sum of £20" (s 3). The Act therefore recognises the annual £20 payment as the baseline priority for distribution from current income; the source of that obligation is the historic will and the Order that are recited in the Preamble.

Trustees’ discretionary authority. The principal right created on the decision-making side is the explicit statutory discretion vested in the Trustees. Section 3 states that the surplus income "may, at the discretion of the Trustees, be capitalised or paid to the Anglican Church of Australia clergyman for the time being stationed at York" (s 3). That is a permissive power, not a mandatory command. It gives the Trustees an annual choice between at least two treatments of surplus income: capitalisation (adding the surplus to the capital of the Special Fund) or paying the surplus in cash to the clergyman.

Beneficiary’s rights. The clergyman's right under the Act is limited and contingent. The clergyman has an apparent statutory interest in receiving the £20 per year as the primary distribution that must be paid from income in each year (s 3; Preamble). The clergyman has no automatic statutory entitlement to receive surplus income: surplus is payable only if the Trustees elect to pay it rather than capitalise it. The Act therefore creates a discretionary secondary benefit for the clergyman.

Residual and historical powers. The Preamble records that the earlier Order also provided the Trustees with power to draw on capital to make good any deficiency. That historic power is recited as part of the background facts but is not repeated in s 3. The existence of that power is relevant because the Act addresses surplus treatment; the possibility of drawing on capital to meet deficiencies remains a factual and legal antecedent recorded in the Preamble (Preamble). The Act itself does not expressly change, expand or extinguish the recited powers originating in the Order, but the Preamble records their historical existence.

No procedural constraints on discretion in the Act. The Act does not prescribe conditions for exercising the Trustees' discretion: there is no statutory requirement for minutes, consultations, periodic reviews, notice to beneficiaries, or standards such as "best interests" or investment performance. The Act gives a clean statutory authorisation to either capitalise or pay surplus income, without a statutory checklist or standards in the text (s 3).

No enforcement or penalty provisions in the Act. The Act contains no express enforcement provisions, sanctions, or remedies for failure to pay the £20 or for misuse of the Trustees' discretion. The Act deals solely with the permissible disposition of surplus income (s 3). Any legal consequences of non-compliance with the underlying will, the Order, or trust law are not articulated in this statute.

Statutory absence of penalties. The Perth Diocesan Trustees (Special Fund) Act 1944 contains no provisions that create offences, penalties, fines, or civil sanctions for non-compliance. The Act consists principally of a short title (s 1), definitions (s 2), and the discretion to capitalise or pay surplus income (s 3). There is no section that prescribes enforcement mechanisms, compliance monitoring, penalty regimes, or criminal or administrative liabilities tied to the operation of the Special Fund as described in the Act.

Operational enforcement implications. Because the Act does not specify enforcement measures, any enforcement or remedial recourse for a beneficiary or other party would have to be founded on sources outside the Act itself. The Preamble records antecedent legal instruments , notably the will of Samuel Evans Burges and a judicial Order made pursuant to the Redemption of Annuities Act 1909 , that created and allocated the original charge and the cash surrender mechanics (Preamble). If a dispute arose about the Trustees’ exercise of discretion, the relevant baseline rights and duties would be the historic testamentary and court-order instruments recited, together with general trust and equity principles and any applicable corporate governance or diocesan rules, none of which are altered or displaced by the text of this Act as compiled.

No statutory supervisory body named. The Act does not designate a regulator, minister, or court as the body to supervise or review decisions made under s 3. The Trustees are the statutory decision-maker for surplus income treatment; the Act imposes no statutory reporting, review, or external oversight obligations in its text.

Practical enforcement channels not legislated. The statute does not set out a private right of action under the Act itself, nor does it set out a statutory enforcement process such as an application to a specified tribunal. Any lawful challenge to a Trustees' decision would therefore need to proceed, if possible, via the ordinary courts or through internal governance remedies of the Trustees, relying on legal bases outside this Act.

Consequences for compliance. The absence of express statutory penalties means that the Act alters legal authority (by giving a clear discretionary power) without creating a statutory enforcement architecture for policing that power. The Preamble and compilation notes identify the legal pedigree of the fund and name changes; they do not, however, supply enforcement mechanisms. Practically, that will focus any compliance or dispute resolution on the Trustees’ corporate processes, their fiduciary duties under general law and on the terms of the originating instruments recited in the Preamble.

Dependence on antecedent will and court Order. The Act is explicitly tied to the testamentary charge created by the will of Samuel Evans Burges and the judicial Order made on 19 April 1910 under the Redemption of Annuities Act 1909 which fixed the cash surrender value at £500 and directed investment and income treatment (Preamble). The Act does not purport to repeal or replace the will or the Order; rather it records that the £500 was paid to the Diocesan Trustees, that income of £20 per annum was to be applied for the clergyman’s benefit, and that surplus income had historically been capitalised with provision to draw on capital to make good deficiencies (Preamble). The Act overlays an express statutory discretion in the Trustees to capitalise or pay surplus income (s 3), but the legal status and continuing effect of the original will and the court Order remain part of the background facts recited.

Interaction with diocesan statutory framework and name change. The compilation notes show subsequent Acts that changed the name and corporate arrangements of the diocesan trustees: what was once the "Standing Committee of the Synod of the Western Australian Branch of the Church of England" was vested in "The Diocesan Trustees of the Church of England in Western Australia for the time being", later renamed "The Perth Diocesan Trustees" by the Church of England Diocesan Trustees and Lands Act 1918 (Notes 4, 5; Preamble). Further, the Anglican Church of Australia Act 1976 changed the name of the Church of England to the "Anglican Church of Australia" and the reprint notes explain that references in the Preamble remain as originally worded for context (Notes 2, Compilation table). The Act therefore needs to be read in the context of those ecclesiastical and corporate statutory changes that affect the identity of the trustee corporation.

Currency and historical references. The compilation note explicitly states that references in the Act to the old currency are of historical interest only and have not been amended under the Decimal Currency Act 1965 (Note 3). Consequently, references to sums in pounds in the text and preamble should be interpreted as historical monetary references; the Act itself does not convert the monetary figure to current currency within its text.

No conflict clauses or supersession expressed. The Act contains no express clause that modifies, overrides, or supersedes other statutory provisions beyond the narrow operative authority it confers. It does not expressly amend the originating will or the court Order; it records them and then grants the Trustees a discretion concerning surplus income (Preamble; s 3). Therefore interactions with other laws will arise primarily through interpreting how the Act’s discretionary authority operates alongside the pre-existing instruments and general trust, corporate and ecclesiastical law.

Practical interaction with trust and corporate law not specified. The Act does not set out how capitalisation should be effected for accounting or tax purposes, what investment standards should apply, or what record-keeping is required. Those matters will be governed by the applicable trust law, corporate law applicable to The Perth Diocesan Trustees, and any diocesan rules or governance documents in force, none of which are specified in the Act.

Primary enactment. The Perth Diocesan Trustees (Special Fund) Act 1944 was enacted as No. 25 of 1944, assented to on 23 December 1944 and commenced the same day, as shown in the compilation table. The Act is a short, single-purpose statute creating the definitions and the Trustees’ discretion regarding surplus income (Compilation table; s 1; s 2; s 3).

Subsequent statutory amendments and reprints. The compilation notes list two later legislative instruments affecting the Act or its reprints:

• The Anglican Church of Australia Act 1976 (No. 121 of 1976) effected the change in nomenclature from "Church of England" to "Anglican Church of Australia" by s 7 of that Act. The compilation notes record that references in the Preamble to "Church of England" have not been changed due to context (Notes 2). The compilation table records that the relevant provision took effect on 24 August 1981 for the purposes of the reprint, with the Gazette reference (Compilation table).

• The Statutes (Repeals and Minor Amendments) Act 2003 (No. 74 of 2003) s 145 is listed in the compilation table as an amending instrument with assent dated 15 December 2003 and commencement the same day (Compilation table).

Reprints. The Act was reprinted as at 3 May 2002 and again reprinted as at 7 August 2015, the latter including the amendments listed in the compilation table (Compilation table). The reprint notes show which provisions were amended or not changed in reprinting.

Section-specific amendments. The marginal notes indicate that s 1 was amended by No. 74 of 2003 s 145 and that s 2 and s 3 were amended by No. 121 of 1976 s 7. The compilation table and notes make clear the amendments are largely nomenclature updates and reprinting processes; the operative substance of s 3 , the Trustees’ discretion over surplus income , is preserved (s 1 note; s 2 note; s 3 note; Compilation table).

Preservation of preamble language. Note 2 in the compilation table explicitly states that the name change from "Church of England" to "Anglican Church of Australia" effected by the 1976 Act did not alter references in the Preamble because of the contextual nature of that recital. That explains why the Preamble still contains older terminology even though the operative sections use the modern name (Notes 2; s 2; s 3).

No later substantive amendments recorded in the Act text. Beyond the name and compilation adjustments recorded in the compilation table and notes, the Act contains no further substantive statutory amendments recorded in the provided compilation. The Act continues to present the definitions and the Trustees' discretion as its operative provisions.

Compilation notes and Act text. The compiled Act and accompanying notes supplied do not record any litigation history arising under or about this Act. The Preamble records that an Order of Mr Justice McMillan was made on 19 April 1910 pursuant to the Redemption of Annuities Act 1909 which fixed the cash surrender value and set the investment and income rules for the fund (Preamble). That judicial Order is recorded as a factual antecedent in the Preamble, but the compilation provided does not include any subsequent judicial decisions concerning the 1944 Act itself or disputes about its operation.

No cases, appeals, or judicial interpretations cited in the Act or compilation notes. The Act's text and the accompanying compilation notes do not list any decided cases, reported litigation, or statutory construction disputes concerning the meaning or operation of s 3 or other sections. The absence of such entries in the compilation is not itself evidence that litigation has never occurred; it only indicates that no litigation history is recorded in this reprint or accompanying notes.

Scope for judicial involvement. Given that the Act confers a discretionary power upon the Trustees and records antecedent instruments (will and the 1910 Order), any actual dispute between the Trustees and the beneficiary about the exercise of that discretion, or about compliance with the historical Order or will, would likely have been (or would be) litigable in appropriate courts as a matter of trust or equity law. The Act itself contains no built-in dispute resolution mechanism or specialist tribunal. However, the compilation does not provide instances of such litigation.

If a search of reported authorities is required. The compilation text supplied here does not contain litigation citations; locating any reported judicial decisions that interpret or apply the 1944 Act or the antecedent Order would require independent legal research in case law databases and court records. The present compilation does not supply such a record.

Terminology mismatch between Preamble and operative sections. The Preamble recites historical facts using the terminology "Church of England", reflecting the legal and historical context at the time of the will and earlier statutes (Preamble). The operative definition in s 2 and the operative provision in s 3 use the modern term "Anglican Church of Australia clergyman". The compilation notes explain the name change effected by the Anglican Church of Australia Act 1976 and explicitly state that references in the Preamble were not updated (Notes 2; Compilation table). Practically, one must read the Preamble and operative provisions together and recognise that the Preamble’s historical phrasing has not been modernised in the recital even though the operative definition does use the updated name (s 2; s 3; Notes 2).

Discretion is permissive, not mandatory. Section 3 gives the Trustees a choice: surplus "may, at the discretion of the Trustees, be capitalised or paid" (s 3). The use of "may" and "at the discretion of the Trustees" creates permissive statutory authority rather than an obligation to either capitalise or pay. Thus, absent other governance documents or legal duties beyond the Act, the Trustees have statutory latitude. The Act does not require reasons, consultation, or beneficiary notification when exercising this discretion.

No statutory detail on what "capitalised" entails. The Act permits the Trustees to capitalise surplus income but does not define the accounting or legal mechanics of capitalisation. The Preamble records that surplus income had been capitalised historically and that, as a result, the annual income from the capital sum is now in excess of the £20 required to be paid (Preamble). That historical observation shows an effect of prior capitalisation, but the Act does not specify how capitalisation should be implemented for accounting, tax, or reporting purposes.

Legacy power to draw on capital is recited but not restated. The Preamble states that the earlier Order gave the Trustees power "from time to time to draw thereon to make good any deficiency". The Act does not itself reproduce or elaborate that power in s 3. Anyone relying on that power should consult the original Order and related documents because the Act’s text does not itself confirm, amend or extinguish that specified authority (Preamble).

Old-currency figures remain in statute. The figures used in the text and Preamble are historical and in pre-decimal currency (for example, the sum of £500 and the annual sum of £20). The compilation notes explicitly state that references to the old currency are of historical interest only and were not amended under the Decimal Currency Act 1965 (Note 3). Practitioners must therefore understand the monetary figures as historical references and consider whether modern valuation, indexing, or statutory conversion is necessary for practical administration.

No procedural, reporting, or oversight rules. The Act does not set out procedural steps, record-keeping obligations, or oversight processes for Trustees when they exercise the discretion in s 3. That absence can create uncertainty for beneficiaries seeking information about decisions, and for third parties evaluating the Trustees' governance practices. The Act itself contains no transparency or accountability mechanism tied to the exercise of the surplus-disposition discretion.

Potential for changing cashflow to beneficiary. The power to capitalise surplus income can, as a mechanical matter, convert potential cash distributions into additions to capital, thereby altering the cashflow profile available to the clergyman. The Preamble observes that surplus capitalisation had the effect of increasing the annual income from the capital sum to an amount in excess of the £20 payment (Preamble). This shows the mechanism by which Trustees’ capitalisation choices materially change future income distributions; the Act leaves that strategic choice to the Trustees.

No enforcement mechanism in the Act. The statute contains no penalties or enforcement provisions, so parties affected by decisions under s 3 must look beyond the Act for remedies or oversight (s 3; Penalties and enforcement section above). That reality may be a surprise to parties expecting a statutory enforcement scheme tied to the fund.

Identify the Special Fund and relevant documents. The starting point for compliance is to treat the "Special Fund" as the capital sum and accretions vested in The Perth Diocesan Trustees for the support of the Anglican clergyman at York, as defined in s 2. The Preamble records antecedent documents, including the will of Samuel Evans Burges and the Order made under the Redemption of Annuities Act 1909 that fixed the cash surrender value and directed investment (Preamble). For practical compliance, Trustees should assemble and retain copies of the original will, the 1910 Order, and any subsequent diocesan or corporate instruments that evidence the capital sum, investment directions, and any powers to draw on capital.

Calculate annual income and identify surplus. Section 3 frames the Trustees’ discretion around surplus income "remaining in the hands of the Trustees in any year after payment ... of the sum of £20". Practically, compliance requires an annual accounting process: (1) determine income arising from the Special Fund within the relevant accounting year; (2) pay the baseline £20 to the clergyman; (3) compute the amount left as surplus. Given the historical currency references, ensure proper modern accounting treatment and currency translation or valuation where needed, and document assumptions and calculations (s 3; Note 3).

Record the Trustees’ discretionary decision and rationale. Although the Act does not legally mandate particular procedural safeguards, good governance requires that the Trustees formally record the annual decision to capitalise or pay surplus income. The Act grants the discretion "at the discretion of the Trustees" but does not require a particular process (s 3). For prudent compliance, Trustees should: (a) take a formal board resolution or minute recording the decision; (b) state the date, quantum of surplus, whether it was capitalised or paid, and the reasons for the decision; (c) retain supporting financials and minutes; and (d) record any consequential investment actions if capitalisation is chosen.

Implement capitalisation correctly if chosen. If Trustees choose to capitalise the surplus, they must effect the capitalisation in the fund’s accounts and records consistent with the investment instructions that may be contained in the 1910 Order and relevant diocesan governance. The Preamble records that the £500 was "invested ... in the securities mentioned in the said Order" and that surplus capitalisation had previously been practised (Preamble). Trustees should therefore consult the original Order to understand any continuing investment directions and ensure capital additions are placed into permitted securities or holdings, or otherwise consistent with any legal investment constraints shown in antecedent documents.

Make payment correctly if chosen. If Trustees elect to pay the surplus to the clergyman, they must effect payment from current income in the year of calculation and record the payment. Payments should be traceable, and trustees should treat the outflow as a distribution from income, consistent with the annual accounting and the Act’s language (s 3).

Consider continuity planning for deficits. The Preamble records that the earlier Order provided a power for Trustees to draw on capital to make good any deficiency. While s 3 does not restate that power, it is recorded in the Preamble. Trustees should review the original Order and any other governing documents to determine whether a power to draw on capital exists and what conditions apply. Practically, Trustees should have contingency plans for years in which income falls short of the £20 obligation, including whether drawing on capital is permitted and appropriate.

Address modern accounting, tax and currency issues. The Act uses historical monetary amounts and pre-decimal currency references (Note 3). Trustees should apply appropriate contemporary accounting conventions to translate historical figures into present-day financial statements, and should take external tax and accounting advice as necessary. The Act does not supply modern conversion or tax rules.

Communicate with the beneficiary. Because the Act gives the Trustees discretion over surplus, and because it contains no statutory notification requirement, Trustees should nonetheless adopt a practice of informing the clergyman (or the diocesan office) of the annual outcome: whether surplus was capitalised or paid and the rationale. Such communication, while not required by the Act, reduces friction, supports transparency, and documents the administration of the Special Fund.

Preserve governance and documentation for audit or legal scrutiny. Although the Act contains no enforcement provisions, Trustees should keep robust records of annual income calculations, investment statements, board minutes recording the decision, and payment receipts. That documentation will facilitate any external review, audit, or legal inquiry, and will help demonstrate the Trustees’ proper exercise of discretion in the event of a dispute.

Review antecedent instruments and corporate statutes. For full legal compliance, Trustees should review the original will, the 1910 Order, and subsequent statutory instruments recorded in the compilation notes (for example, laws that changed the corporate name and status of the trustees). The compilation table and notes identify the Anglican Church of Australia Act 1976 and the Statutes (Repeals and Minor Amendments) Act 2003 as relevant post-enactment materials (Compilation table; Notes). Understanding how those instruments affect corporate identity, investment authority, and procedural obligations will help ensure that the Trustees’ decisions under s 3 are executed within the correct legal framework.

Seek legal advice where ambiguity exists. The Act grants discretion but does not specify standards or procedural minima. Where there is uncertainty about the legal effect of capitalisation, the interaction with the 1910 Order, currency conversion, or potential claims by beneficiaries, Trustees should obtain legal advice grounded in the original documents and contemporary trust law. The Act itself does not provide guidance on these points (s 3; Preamble).

Keep decisions within corporate powers. Trustees should ensure any exercise of discretion accords with The Perth Diocesan Trustees’ corporate constitution and broader statutory duties applicable to that corporate trustee. The Act identifies the Trustees as the decision-maker (s 2), but it does not displace other legal obligations applicable to the corporate trustee as a corporate entity. Documentation that links the exercise of discretion to the trustees’ corporate powers will assist compliance and risk management.