The Salvation Army (Western Australia) Property Trust Act 1931

The Act primarily affects the Salvation Army as an organisation in Western Australia, its property holdings, and the people who deal with that property. The Property Trust itself - the body corporate - is the direct subject of the Act: it is created by the Act and must operate within its provisions. The trustees (the five to seven individuals appointed by the General) are personally responsible for managing the trusts, keeping records, and exercising powers. They are likely senior Salvation Army officers with knowledge of the Army’s internal structures.

The General of the Salvation Army is affected because the Act transfers to the body corporate many powers that the General previously held personally over property. However, the General retains appointing and removal powers over trustees (s 4, s 15) and must consent to any variation of trusts (s 9(2)). The General can also delegate his statutory powers (s 23). The General’s rights relating to property are vested in the body corporate (s 21).

Donors and testators are affected indirectly. Section 18 provides that any gift, devise or bequest to the Salvation Army in Western Australia (or to any fund, department, branch, corps, auxiliary or institution) is construed as if the body corporate were named. This means that a will leaving property to “The Salvation Army in Western Australia” takes effect as a gift to the Property Trust. Donors who intend property to be held on specific trusts (e.g. for a particular corps) should give clear directions; otherwise the property falls under the control of the trustees, subject to any direction to the contrary in the instrument (s 18(c)). Section 19 reinforces this by vesting such property directly in the body corporate, unless the gift is made to specific trustees upon trust.

Third parties dealing with the trust - mortgagees, purchasers, lenders and their legal advisers - receive significant protections. The Act provides conclusive evidence in their favour of the due execution of documents (s 6(4)), the appointment of officers (s 17(1)), and the identity of trustees (s 17(2)). Receipts for money paid to the trustees exonerate the payer from seeing to its application or inquiring into the necessity of the dealing (s 12). This makes it safe for external parties to transact with the Property Trust without conducting a deep inquiry.

The Crown and government registrars - the Registrar of Deeds and Transfers, the Registrar of Titles, and the chief executive officer administering the Land Administration Act 1997 - are given conclusive evidentiary effect from certificates issued by the trust (s 6(4), s 17(1), s 17(2)). They must accept those certificates for the purpose of registering dealings.

The Salvation Army Auxiliary Company of Australia Proprietary, Limited is expressly excluded from the vesting provisions; its shares and property are not affected (s 7).

Duty to hold property on trusts: The trustees must hold all property vested in the body corporate on the trusts declared by the Deeds Poll, as applicable. Property held for general purposes is governed by the 1878 and 1904 instruments; property held for Social Work by the 1920 Deed Poll (s 9(1)). The trusts cannot be enlarged, modified, varied or altered except with the consent of the General (s 9(2)). If the property is subject to an express trust other than the Deeds Poll, any variation is possible only to the extent that trust could have been altered had the Act not been passed (s 9(4)).

Duty to keep records: The trustees must hold regular meetings and maintain minutes of proceedings and resolutions. Those minutes must be open for inspection by the General or his appointee (s 14(2)). They must also keep a register of all lands vested in the body corporate, showing which are held for general purposes and which for Social Work (s 14(3)).

Power to mortgage: The body corporate may borrow money with or without security and may mortgage or charge any of its real or personal property (s 10(1)). There is a critical limitation: no debt incurred for general purposes may be secured on property held for Social Work (s 10(2)). Any money raised on Social Work property may be used only for Social Work (s 10(3)). This ring‑fences the Social Work trust assets.

Power to sell: The body corporate may sell any real or personal property by public auction or private contract on such terms as the trustees think fit (s 11). The trustees may convey or assign the property to the purchaser, and the property is then absolutely freed from the trusts (s 11). This is a broad power, but the proceeds of sale of Social Work property must be applied to Social Work purposes (s 13).

Power to appoint officers: The trustees may appoint officers such as a secretary. A certificate under seal of the appointment is conclusive evidence in favour of registrars and persons dealing for value (s 17(1)). The secretary may issue certificates as to who the current trustees are and as to resolutions, and those certificates are conclusive evidence in the same way (s 17(2)).

Right to use common seal: The seal may be affixed only by authority of a trustees’ resolution, and the affixing must be attested by at least two trustees or in such other way as the trustees determine (s 6(1)). The production of a document so executed is prima facie evidence and, in favour of the Crown, registrars and value dealers, conclusive evidence that it was executed in accordance with the Act (s 6(4)).

Rights of the General: The General may delegate any of his powers under the Act (s 23). He may remove trustees and appoint replacements (s 15). He must consent to any variation of trusts (s 9(2)). His rights relating to property are vested in the body corporate (s 21). Nothing in the Act prejudices any right that could have been enforced against the General personally; such rights may be enforced against the body corporate instead (s 20).

The Act contains no express penalty provisions. It does not create criminal offences or impose fines for non-compliance. Enforcement of the trusts and duties under the Act is therefore a matter of general trust law and the law of charitable trusts. The trustees are fiduciaries; they must act in accordance with the Deeds Poll and the Act. Breach of trust could be remedied by an action for breach of trust in a court of equity. The General, as the appointor and supervisor, has the power to remove trustees (s 15) and to inspect minutes (s 14(2)), which provides an internal enforcement mechanism. The Act also provides that any right that could have been enforced against the General personally may be enforced against the body corporate (s 20). This means that creditors or beneficiaries who had claims against the former trustee (the General) can now look to the Property Trust. There is no statutory penalty for failing to keep the land register or minutes, but such failures would likely be a breach of duty by the trustees and could be grounds for removal by the General or for a court order compelling compliance. The conclusive evidence provisions in sections 6(4) and 17 are evidentiary, not penal: they protect third parties but do not impose consequences on the trustees for errors. The Act’s enforcement relies on the combination of internal oversight by the General and the general law of trusts and charities.

The Act explicitly references several other Western Australian statutes. Section 6(4) and section 17 mention the Registrar of Deeds and Transfers, the Registrar of Titles, and the chief executive officer of the department administering the Land Administration Act 1997. Section 22 provides a mechanism for vesting mortgages, charges or estates in land under the Transfer of Land Act 1893 or the Land Administration Act 1997. On application by the trustees and proof of the facts, the Registrar or chief executive officer must make the appropriate entry in the register, and the interest vests without a formal transfer (s 22). This overrides the usual requirements of the Torrens system for a formal transfer document, substituting a statutory vesting procedure. The Act also interacts with the law of wills and testamentary dispositions through sections 18 and 19: a gift to the Salvation Army is automatically construed as a gift to the body corporate, and vests accordingly. This overrides the normal rule that a gift to an unincorporated association may be void for uncertainty or fail because the association cannot hold property. The Act does not expressly mention the Trustees Act 1962 (WA) or the Charitable Trusts Act 1962 (WA), but those general statutes would apply to the extent not inconsistent with this Act. For example, the trustees’ powers of investment, if any, would be supplemented by the general law, but the Act gives very broad powers to mortgage and sell. Section 12 says the protection for mortgagees and purchasers is in aid of and not in derogation from any other protection afforded by any other Act; thus the Act adds to, not subtracts from, existing protections. The Act’s preamble references the English High Court and Supreme Court of Judicature for the enrolment of the Deeds Poll, but those are historical matters; the Act itself is a statute of Western Australia and operates solely within that jurisdiction.

The Act received royal assent on 28 November 1931 and came into operation on 11 December 1931 upon publication of the first trustees’ names in the Government Gazette (s 1, compilation table). The original Act was reprinted as at 20 October 1972. Substantive amendments began in 1996: the Transfer of Land Amendment Act 1996 (No. 81 of 1996) amended section 22 to update references to the Transfer of Land Act 1893. The Land Administration Amendment Act 2000 (No. 59 of 2000) further amended section 22 to refer to the chief executive officer under the Land Administration Act 1997. The Land Information Authority Act 2006 (No. 60 of 2006) amended sections 6, 17 and 22 to replace references to the “Minister” and “department” with references to the “chief executive officer” and updated terminology. The Standardisation of Formatting Act 2010 (No. 19 of 2010) amended sections 8, 9 and 10 to standardise formatting, including replacing “Provided that” with modern language (s 8, s 9, s 10). The Statutes (Repeals and Minor Amendments) Act 2011 (No. 47 of 2011) made minor amendments to sections 6 and 17. The compilation table shows a reprint in 2003 (incorporating amendments up to 2000), and a further reprint as at 22 August 2014 (incorporating all amendments to that date). No amendments appear after 2011 in the table. The core structure and purpose of the Act remain unchanged since 1931; all amendments are procedural, updating references to public officers and standardising formatting.

The Act does not record any reported litigation. The preamble and recitals describe a history of Deeds Poll and the removal of General William Bramwell Booth, but those events were administrative and occurred in England, not court proceedings in Western Australia. The Act itself was passed to avoid litigation and doubt: the preamble states it was “expedient to provide” for vesting property to minimise future disputes. The notes and compilation table contain no references to court cases. A search of Western Australian case law databases would be needed to determine whether any interpretation or enforcement proceedings have occurred, but the Act itself provides no information about such cases. The protections for third parties (s 12, s 17) suggest the drafter intended to discourage litigation by making certificates conclusive and receipts exonerating. The Act gives no statutory cause of action beyond trust law remedies. It is likely that disputes have been rare, given the centralised governance and the General’s supervisory role. The Act’s provisions are largely facilitative rather than contentious.

Cross‑collateralisation prohibition: Section 10(2) provides that “no debt incurred for the general purposes of The Salvation Army shall be secured upon any property which is for the time being held upon trust for the Social Work of the Salvation Army.” A creditor who takes a mortgage over Social Work property to secure a general debt runs the risk that the security is unenforceable or that the trustees are acting beyond power. Third parties are protected by section 12 only if they act in good faith; the Act does not say that a mortgage given in contravention of s 10(2) is void, but it is arguably ultra vires the body corporate. Practitioners should verify which category the property falls into by checking the trustees’ land register (s 14(3)).

Variation of trusts requires General’s consent: Under section 9(2), the trustees may enlarge, modify, vary or alter the trusts only “with the consent of the General”. Absent that consent, the trusts remain fixed. If the property is subject to an express trust other than the Deeds Poll, the power to vary is even more limited: the trustees can only do so to the extent the original trust could have been altered had the Act not been passed (s 9(4)). This means that a donor who imposed specific conditions may still have those conditions enforced, and the Property Trust cannot unilaterally change them.

Wills and gifts - automatic vesting can override testator intentions: Section 18(a) provides that any gift “to the benefit of the Salvation Army in Western Australia” is construed “as though the body corporate were named therein”. This is a statutory presumption that may not reflect the testator’s intention if they wanted the property to go to a specific local corps or institution. However, the section also preserves “any direction to the contrary therein contained or declared thereby so far as the same are capable of taking effect” (s 18(c)). A testator who gives property “to X Corps of the Salvation Army, to be used for that corps’ purposes” may create a specific trust that overrides the general vesting - but the property will still vest in the body corporate, which must then administer it according to the specific direction. If the direction is impossible or fails, the general trusts apply.

No protection for beneficiaries: The Act’s protections are overwhelmingly for third parties dealing with the trustees, not for beneficiaries. Mortgagees and purchasers need not inquire into the propriety of dealings (s 12). Certificates are conclusive in favour of registrars and value dealers (s 17). But a beneficiary who suspects a breach of trust receives no special statutory remedy - they must rely on general trust law. The Act does not oblige the trustees to publish accounts or obtain independent audit; only the General can inspect minutes (s 14(2)).

Limited disclosure of trustee dealings: The register of lands (s 14(3)) is not stated to be a public document. It must be kept, but there is no obligation to make it available to the public or to donors. This could make it difficult for a donor to verify how their gift is being used.

General’s delegation not subject to limitation: Section 23 allows the General to delegate “all or any of the powers conferred upon him by this Act” and to revoke any delegation. There is no requirement that the delegation be in writing, though it would be prudent. The General could delegate the power to appoint and remove trustees to a subordinate - potentially creating a conflict if the delegate is also a trustee. Practitioners dealing with the trust should confirm who actually holds the General’s powers at the relevant time.

Vesting under the Torrens system: Section 22 provides a simplified process for vesting mortgages and charges under the Transfer of Land Act 1893 and the Land Administration Act 1997. However, the application must be made by the trustees, and proof satisfactory to the Registrar must be provided. If the trustees fail to apply, the legal interest may not be recorded on title, creating an irregularity. Third parties may still rely on the statutory vesting (s 7), but practical dealings may be hindered.

Establish and maintain proper records: Under section 14, the trustees must hold regular meetings and keep minutes of proceedings and resolutions. These minutes must be available for inspection by the General or his delegate. Additionally, the trustees must keep a register of all lands vested in the body corporate, clearly indicating which are held for general purposes and which for Social Work. This register is essential for ensuring compliance with the ring‑fencing requirements of section 10 (no cross‑collateralisation of general debts on Social Work property). It also assists donors and the General to understand how property is allocated.

Use the common seal correctly: The seal must not be affixed to any document except under authority of a trustees’ resolution. The affixing must be attested by at least two trustees, or in such other way as the trustees from time to time appoint (s 6(1)). A document so executed is prima facie evidence and, in favour of the Crown, registrars and value dealers, conclusive evidence that it was properly executed (s 6(4)). The trustees should adopt a formal seal policy and ensure that all contracts under seal follow this procedure; contracts that need not be under seal may be made in writing signed by a person acting under authority, or even by parol if permitted by general law (s 6(2)).

Borrow and mortgage within trust boundaries: Before borrowing, the trustees must identify whether the property to be charged is held for general purposes or Social Work. A debt for general purposes must never be secured on Social Work property (s 10(2)). Any money raised on Social Work property may be used only for Social Work (s 10(3)). A prudent trustee will obtain legal advice on the source of funds and the purpose of the borrowing, and will ensure that any mortgage documentation clearly states the purpose. For external lenders, the protection of section 12 will apply if they act in good faith and obtain a receipt, but the trustees themselves may face internal consequences if they exceed their powers.

Obtain General’s consent for trust variations: If the trustees wish to enlarge, modify, vary or alter the trusts on which any property is held (which would change the purpose from general to Social Work or vice versa, or otherwise alter the beneficial trusts), they must obtain the General’s written consent (s 9(2)). For property that is already subject to a specific express trust (not just the Deeds Poll), the power to vary is limited to what that trust itself would have permitted (s 9(4)). The trustees should document the consent and the resolution approving the variation.

Lodge vesting applications under s 22: When the body corporate acquires a mortgage, charge or estate in land under the Torrens system or the Land Administration Act 1997, the trustees should promptly apply to the Registrar of Titles or the relevant chief executive to have the interest recorded. The application must include proof of the facts and payment of fees equivalent to a transfer (s 22). This ensures that the title register matches the statutory vesting, which facilitates future dealings.

Maintain officer appointments: The trustees may appoint officers such as a secretary. A certificate under seal of the appointment is conclusive evidence in favour of registrars and value dealers (s 17(1)). The secretary can then issue certificates as to who the current trustees are and as to resolutions, and those certificates are conclusive evidence in the same capacity (s 17(2)). This system allows the trust to deal efficiently with external parties. The trustees should ensure that officer appointments are formally documented and that the seal is used correctly.

Dealings with third parties - rely on the statutory protections: The trustees can transact with confidence that mortgagees, purchasers and lenders are protected by section 12, which exonerates them from seeing to the application of money. But the trustees should still provide a receipt in writing, as that triggers the protection. For purchasers, the conveyance under section 11 frees the property absolutely from the trusts, so the trustees must be satisfied that the sale is proper and that any trust for Social Work proceeds is complied with (s 13). The trustees should keep separate accounts for Social Work property to ensure traceability of proceeds.

Handle testamentary gifts correctly: When a will or other instrument gives property to the Salvation Army in Western Australia, the trustees should treat it as a gift to the body corporate (s 18). If the gift carries a specific direction (e.g. for a particular corps), the trustees must respect that direction insofar as it is capable of taking effect. They should record the donor’s intent and manage the property accordingly. If the gift was made before the Act but taking effect after, or after the Act, and was not to specific trustees, it vests directly in the body corporate by virtue of section 19. The trustees may need to call for transfer, conveyance or delivery of the property (s 18(c)).