Part 4Charitable trusts procedure

Part 4—Charitable trusts procedure 60—Applications to Supreme Court (1) In every case of a breach of any trust or supposed breach of any trust created for charitable purposes, or whenever the direction or order of the Supreme Court shall be deemed necessary for the administration or management or to the advantage or benefit of any trust created for charitable purposes, it shall be lawful for a person referred to in subsection (2) to apply to the Supreme Court, stating such breach or supposed breach, or the grounds upon which such direction or order is necessary, as the case may be, and seeking such relief as the nature of the case may require. (2) An application may be made by any of the following persons: (a) the Attorney-General; or (b) a trustee of the trust; or (c) a person who is named in the instrument establishing the trust as a person who is entitled to, or may, receive money or other property for the purposes of the trust; or (d) a person who is named in the instrument establishing the trust as a person who must, or may, be consulted by the trustees before distributing or applying money or other property for the purposes of the trust; or (e) a person who has in the past received money or other property from the trustees for the purposes of the trust; or (f) a person of a class that the trust is intended to benefit; or (g) any other person who satisfies the Court that he or she has a proper interest in the trust. 61—Application to be accompanied by affidavit An application must be accompanied by an affidavit made by 1 of the persons making the application or a person who can swear positively to the facts, verifying the application and the grounds on which the proposed relief is sought. 62—Application to be heard in open court An application must be heard in open court. 63—Evidence may be brought by affidavit or otherwise (1) An applicant or other person appearing at the hearing of the application may bring before the court evidence by affidavit, or, if the court so directs, oral evidence, and the court may call on an applicant or other person appearing at the hearing of the application to prove before it, by affidavit or otherwise, as the court directs, such matters as the court thinks fit. (2) The attendance of any witness or the production of any document for the purposes of this section may be enforced by subpoena issued at the instance of the person requiring such attendance or production. 64—Service of application and copy of affidavit The application, together with a copy of the accompanying affidavit, shall be served upon the Attorney-General where the application is presented by some person other than the Attorney-General, and upon such other persons as the court may direct. 65—Attorney-General may address court at hearing The Attorney-General may appear and address the court, either personally or by counsel, at the hearing of the application. 66—Person may address court with permission of Judge With the permission of the court, any person interested who has not been served with the application may appear and address the court on the hearing of the application, but shall not be allowed costs out of the trust funds unless the court so directs. 67—Powers of court in dealing with application The court may make such order on the application as to it seems just, or may refuse to make any order, or may direct that the right to the relief sought be determined in an action to be brought for that purpose. 68—Court may order costs The court may make such order as to costs as to the court may seem just, and may order an applicant to pay the adjudicated costs of any person appearing at the hearing in pursuance of section 66. 69—Powers of Supreme Court may be exercised by a single Judge The authority and jurisdiction by this Act vested in the Supreme Court may, subject to any rules or orders of that court in relation thereto, be exercised by a single judge of such court. 69A—Inclusion of non-charitable and invalid purposes not to invalidate a trust (1) Where the purposes for which property is required or permitted to be applied in pursuance of a trust (whether constituted before or after the enactment of this section) are partly charitable, and partly non-charitable and invalid, the trust shall not be held to be invalid, but shall be construed as if no provision had been made requiring or permitting the application of property for purposes that are non-charitable and invalid. (2) This section does not apply to any trust declared by the will of any testator dying before, or to any other trust declared before, the enactment of this section, if before the enactment of this section— (a) the trust has been declared to be invalid by any order or judgment made or given in legal proceedings; or (b) property subject to the trust or income therefrom has been paid or conveyed to, or applied for the benefit of, or set apart for, the persons entitled to that property or income by reason of the invalidity of the trust. 69B—Alteration of purposes of charitable trust (aa1) Subject to subsection (1), the purposes for which property is required or permitted to be applied in pursuance of a charitable trust may be altered by a scheme approved under this section. (a1) The powers of the trustees of a charitable trust in respect of which a trust variation scheme under this section may be approved by the Attorney‑General (on account of the operation of subsection (3)(b)) to manage or administer the trust may be altered by a scheme approved under this section. (1) The purposes for which property is required or permitted to be applied in pursuance of a charitable trust may be altered by a trust variation scheme in any of the following circumstances: (a) where the original purposes, in whole or in part— (i) have been as far as possible fulfilled; or (ii) cannot be carried out, or not according to the directions given and to the spirit of the gift; or (b) where the original purposes provide a use for part only of the trust property; or (c) where the trust property could be more effectively used if combined with other property applicable for similar purposes and administered jointly with that property; or (d) where it is not reasonably practicable having regard to— (i) the value of the trust property; or (ii) changes in circumstances that have taken place since the constitution of the trust; or (iii) any other relevant factor, to apply the trust property in accordance with the original purposes; or (e) where the original purposes, in whole or in part— (i) have been adequately provided for by other means; or (ii) have ceased to be charitable purposes; or (iii) have ceased to provide a suitable and effective method of using the trust property. (2) References in this section to the original purposes of a charitable trust shall be construed, where the purposes for which the trust property is required or permitted to be applied have been altered or regulated by a scheme or otherwise, as referring to the purposes for which the property is for the time being required or permitted to be applied. (3) A trust variation scheme may be approved, on the application of the trustee, by— (a) the Supreme Court; or (b) if the value of the trust property does not exceed $300 000 or another limit prescribed by regulation—the Attorney-General. (3a) The authority to which the application is made (ie the Supreme Court or the Attorney-General) is referred to in this section as the relevant authority. (4) However, the Attorney-General has a discretion to refer an application to the Supreme Court if the application raises questions that should, in the Attorney-General's opinion, be decided by the Court. (5) Notice of an application for approval of a trust variation scheme must be given as the relevant authority directs. (6) If the relevant authority is satisfied, on application under this section, that the variation of the terms of a trust proposed in a trust variation scheme— (a) accords, as far as reasonably practicable, with the spirit of the trust; and (b) is justified in the circumstances of the particular case, the relevant authority may approve the trust variation scheme and the approved scheme prevails over inconsistent provisions of a relevant instrument or declaration of trust. (7) The reasonable costs of an application under this section are payable at the direction of the relevant authority from the trust property. (8) In the case of an application decided by the Attorney-General, the costs— (a) are to be fixed by the Attorney-General; and (b) may include costs payable to the Crown to defray the cost of investigating and deciding the application; and (c) may be recovered as a debt. (9) The Attorney-General must keep available for public inspection a register of approvals given by the Attorney-General under this section. (10) In this section— trust variation scheme means a scheme approved under this section for the alteration of a charitable trust. 69C—Recreational charities (1) Any trust (whether constituted before or after the enactment of this section) to provide, or assist in the provision of, recreational facilities for the public benefit is a charitable trust. (2) This section does not apply to recreational facilities unless— (a) the facilities are provided with the object of improving the conditions of life of the persons for whom they are primarily intended; and (b) either— (i) those persons have need of those facilities by reason of their youth, age, infirmity or disablement, poverty or social and economic circumstances; or (ii) the facilities are to be available to the general public, or a substantial section of the general public. 69D—Trusts may be charitable despite connection to government (1) Any trust (whether constituted before or after the commencement of this section) to provide money, property or any other benefit to or for an entity (including the establishment of an entity) that would, but for its connection to government, be a charity is, despite that connection, a charitable trust. (2) For the purposes of subsection (1), an entity has a connection to government if— (a) the entity receives government funding; or (b) the entity is required to implement government policy; or (c) the entity or the governing body of the entity is comprised of or includes persons appointed by the Governor, a Minister or an agency or instrumentality of the Crown; or (d) the entity or the governing body of the entity is subject to control or direction by a Minister. (3) In this section— government means Commonwealth, State or local government.