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Part 13 Gifts by particular trustees to charity-like government entities or other entities
prescribed trust means—
(a) an ancillary fund mentioned in the Income Tax
Assessment Act 1997 (Cwlth), section 30-15, table, item
2; or
(b) a trust that—
(i) is established and maintained for charitable or
philanthropic purposes; and
(ii) is of a class prescribed by regulation.
relevant trust means a prescribed trust that is prescribed by
regulation to be a relevant trust.
213 Prescribed trust—trust instrument containing express
power to give to eligible recipients
(1) The trust instrument for a prescribed trust may include an
express power for the trustees to provide money, property or
benefits—
(a) to or for an eligible recipient; or
(b) for the establishment of an eligible recipient.
(2) An express power mentioned in subsection (1) that is included
in the trust instrument for a prescribed trust is a prescribed
power for the trust.
214 Prescribed trust—trust instrument not containing
express power to give to eligible recipients
(1) This section applies if the trust instrument for a prescribed
trust does not include an express power mentioned in section
213(1).
(2) The trustees’ powers for the prescribed trust include the power
to provide money, property or benefits—
(a) to or for an eligible recipient; or
(b) for the establishment of an eligible recipient.
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Part 13 Gifts by particular trustees to charity-like government entities or other entities
(3) The power conferred under subsection (2) in relation to the
prescribed trust is a prescribed power for the trust.
(4) Subsection (2)—
(a) applies despite any provision to the contrary in the trust
instrument; but
(b) does not apply in relation to a particular eligible
recipient, or to eligible recipients of a particular class, to
the extent there is an express prohibition in the trust
instrument against the provision by the trustees of
money, property or benefits—
(i) to or for that eligible recipient or eligible recipients
of that class; or
(ii) for the establishment of that eligible recipient or
eligible recipients of that class.
215 Application of Act to prescribed trust
(1) This Act applies in relation to a prescribed trust as if a
prescribed power for the trust were a power exercisable for a
charitable purpose.
(2) Without limiting subsection (1)—
(a) neither the existence nor the exercise of the prescribed
power affects the validity or status of the prescribed trust
as a charitable trust; and
(b) the prescribed trust is to be construed and given effect to
as if—
(i) the prescribed power were a power exercisable for
a charitable purpose; and
(ii) any payment or application of the trust property or
the trust income, or of any part of either of them, in
the way allowed by the prescribed power were to
or for a charitable purpose; and
(c) neither the existence nor the exercise of the prescribed
power affects the control of the prescribed trust by the
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Part 14 Statutory trustees
Supreme Court in the exercise of the court’s general
jurisdiction in relation to charitable trusts; and
(d) the jurisdiction mentioned in paragraph (c) extends to
the prescribed power as if the power were exercisable
for a charitable purpose.
Part 14 Statutory trustees
216 Restriction on exercise of particular powers by statutory
trustees
Despite sections 82 and 83, a statutory trustee may exercise
the following powers in relation to the trust property only with
the approval of the court—
(a) the powers mentioned in section 82(2)(a) and (c);
(b) the power mentioned in section 82(2)(b), other than to
the extent the power is exercised to—
(i) lease the trust property at a reasonable rent for a
term of not more than 1 year, or from year to year,
or for a weekly, monthly or other periodic tenancy,
or a tenancy at will; or
(ii) renew a lease or tenancy mentioned in
subparagraph (i);
(c) the power to vary the terms of a lease of the trust
property or accept, or join with any other persons in
accepting, the surrender of a lease of the trust property;
(d) the powers mentioned in section 83.
217 Rights, duties and protections of statutory trustees
(1) In exercising a power under this Act, a statutory trustee—
(a) has all the rights of a trustee; and
(b) has all the duties and liabilities of a trustee for the
parties beneficially interested in the trust property; and
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Part 15 Miscellaneous
(c) is entitled to all the indemnities and protections to which
a trustee is entitled.
(2) However, despite subsection (1)(b), a statutory trustee is not
liable to impeachment of waste in relation to the exercise of a
power under this Act.
(3) This section applies subject to any order made, or direction
given, by the court.
Part 15 Miscellaneous
218 Regulation-making power
The Governor in Council may make regulations under this
Act.
219 Approved forms
The chief executive may approve forms for use under this Act.
Part 16 Repeal
220 Repeal of Trusts Act 1973
The Trusts Act 1973, No. 24 is repealed.
Part 17 Transitional and validation
provisions
Division 1 Preliminary
221 Definition for part
In this part—
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repealed Act means the repealed Trusts Act 1973.
222 Application of Acts Interpretation Act 1954
This part does not limit or otherwise affect the Acts
Interpretation Act 1954, section 20 or 20A.
Division 2 Restrictions on appointment of
trustees
223 Existing trustees not affected by particular restrictions
on appointment
Section 13 does not apply to the appointment of a person as
trustee that took effect before the commencement.
224 Existing trusts with more than 4 trustees
(1) This section applies in relation to trust property if—
(a) immediately before the commencement—
(i) the repealed Act, section 11(1) applied in relation
to the trust property; and
(ii) there were more than 4 trustees of the trust
property; and
(b) on the commencement, section 14 would, but for this
section, apply to the trust.
(2) Despite section 14, the repealed Act, section 11(1) continues
to apply in relation to the trust property until the earlier of the
following to happen—
(a) the number of trustees of the trust is reduced to 4 or less;
(b) the court approves the appointment of more than 4
trustees of the trust under section 15.
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Part 17 Transitional and validation provisions
225 Existing certificates of Minister approving of more than 4
trustees
(1) This section applies in relation to trust property if—
(a) before the commencement, the Minister gave a
certificate mentioned in the repealed Act, section
11(3)(b) approving of a greater number of trustees than
4 in whom the trust property was, or was to be, vested;
and
(b) immediately before the commencement, the certificate
was still in effect.
(2) Despite the repeal of the repealed Act, the certificate
continues to have effect for the trust to approve the number of
trustees approved under the certificate.
(3) Also, section 14 applies to the trust as if—
(a) the reference in section 14(2) to 4 trustees were a
reference to the number of trustees approved under the
certificate; and
(b) a reference in section 14(3) to 4 persons were a
reference to the number of persons that was approved
under the certificate as the number of trustees.
Division 3 Provisions for appointment,
discharge and removal of trustees
and devolution of trusts
226 Appointment of trustees—replacement of trustee in
particular circumstances happening or starting before
commencement
(1) Section 20 applies in relation to a relevant trustee whether a
circumstance mentioned in section 20(1) happened, or started
to apply, in relation to the relevant trustee before or after the
commencement.
(2) Also, section 20 applies as if a reference in the section to a
relevant trustee included a reference to a trustee who—
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(a) was appointed as trustee before the commencement; and
(b) is a child.
227 Appointment of trustees—replacement of last continuing
trustee who is dead
(1) Section 21 applies in relation to the last continuing trustee of a
trust who is dead, whether the death happened before or after
the commencement.
(2) However, for a trust created before the commencement,
section 21(5) applies to the personal representative of the last
continuing trustee as if the provision were not expressed to be
subject to a contrary intention in the trust instrument.
228 Appointment of trustees—replacement of last continuing
trustee with impaired capacity or who is insolvent under
administration
Sections 22 and 23 apply only in relation to a trust created
after the commencement.
229 Appointment of trustees—additional trustees
(1) If a certificate mentioned in the repealed Act, section 11(3)(b)
continues to have effect for a trust under section 225, section
24 applies in relation to the trust as if the reference in section
24(1)(a) to the number of trustees permitted for the trust under
section 14 were a reference to the number of trustees
approved for the trust under the certificate.
(2) For a trust created before the commencement, section 24(4)
applies to an appointor for the trust as if the provision were
not expressed to be subject to a contrary intention in the trust
instrument.
230 Vesting of trust property in existing trustees
(1) This section applies if—
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(a) before the commencement, 1 or more trustees were
appointed under the repealed Act, section 12; and
(b) immediately before the commencement, any assurance
or thing required for vesting the trust property or any
part of the trust property jointly in the persons who were
the trustees had not been executed or done under the
repealed Act, section 12(2)(d).
(2) The repealed Act, section 12(2)(d) continues to apply in
relation to the vesting of the trust property as if this Act had
not been enacted.
231 Powers etc. of existing trustees appointed under
repealed Act, s 12
The reference in section 26(1) to a person appointed under
part 3, division 2 as a trustee of trust property is taken to
include a reference to a person—
(a) who was appointed as a trustee of trust property under
the repealed Act, section 12; and
(b) whose appointment was still in effect immediately
before the commencement.
232 Removal and discharge of trustees in particular
circumstances happening or starting before
commencement
(1) Section 29 applies in relation to a relevant trustee mentioned
in section 20(1)(c), (d), (e), (f), (g) or (h) whether a
circumstance mentioned in those paragraphs happened, or
started to apply, in relation to the relevant trustee before or
after the commencement.
(2) Also, section 29 applies as if a reference in the section to a
relevant trustee mentioned in section 20(1)(c), (d), (e), (f), (g)
or (h) included a reference to a trustee who—
(a) was appointed as trustee before the commencement; and
(b) is a child.
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Part 17 Transitional and validation provisions
233 Application of requirement to notify former delegate of
trustee’s replacement, removal or discharge
Section 31 applies in relation to the replacement, removal or
discharge of a trustee only if the replacement, removal or
discharge happens after the commencement.
234 Vesting and divesting of particular trust property if
trustees appointed or discharged before commencement
(1) This section applies if—
(a) before the commencement, it was required under the
repealed Act, section 15(3) that the vesting of trust
property in a new trustee, or the divesting of trust
property from a discharged trustee, should be notified to
or registered or recorded by the registrar or another
person mentioned in that section; and
(b) immediately before the commencement, the trustees had
not complied with the repealed Act, section 15(3) in
relation to the vesting or divesting of the trust property.
(2) The repealed Act, section 15 continues to apply in relation to
the vesting or divesting of the trust property as if this Act had
not been enacted.
235 Exercise of trust powers etc. by surviving trustees
Section 36 applies to a surviving trustee whether the trustee
who is survived died before or after the commencement.
236 Vesting of trust property and devolution of trusts—death
of last continuing trustee before commencement
(1) If, immediately before the commencement, trust property
remained vested in the public trustee under the repealed Act,
section 16(2), the repealed Act, section 16 continues to apply
in relation to the following matters as if this Act had not been
enacted—
(a) the devolution and vesting of the trust property;
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Part 17 Transitional and validation provisions
(b) the public trustee’s powers, authorities and discretions
in relation to the trust property.
(2) Despite its repeal, the repealed Act, section 16(6) continues to
apply to a person—
(a) in whom trust property vested before the
commencement under the repealed Act, section
16(2)(b); or
(b) in whom trust property vests after the commencement
under the repealed Act, section 16(2)(b) as applied by
subsection (1).
(3) Subsection (4) applies if—
(a) before the commencement, trust property was divested
from the public trustee under the repealed Act, section
16(2)(a) or (b); or
(b) after the commencement, trust property is divested from
the public trustee under the repealed Act, section
16(2)(a) or (b) as applied by subsection (1).
(4) Despite its repeal, the repealed Act, section 16(7) continues to
apply in relation to—
(a) the liability of the public trustee in respect of any action
taken by the public trustee with regard to the trust
property; and
(b) any person who, but for paragraph (a), would have had a
remedy against the public trustee.
237 Vesting of trust property and devolution of trusts—death
of last continuing trustee after commencement
Part 3, division 7 applies only if the last continuing trustee of a
trust dies after the commencement.
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Part 17 Transitional and validation provisions
238 Mortgage estates vested in public trustee before
commencement
(1) This section applies if, immediately before the
commencement, an estate or interest in property by way of
mortgage was vested in the public trustee under the repealed
Act, section 17(1).
(2) The repealed Act, section 17 continues to apply in relation to
the estate or interest in the property as if this Act had not been
enacted.
239 When grantee under letters of administration taken to be
trustee of will
Section 45 applies—
(a) whether a circumstance mentioned in section 45(1)(a) or
(b) happened before or after the commencement; and
(b) whether the letters of administration mentioned in
section 45(1)(c) were granted before or after the
commencement.
Division 4 Provisions for custodian trustees
240 Application of pt 4 to existing trusts
Part 4 applies in relation to a trust created before the
commencement as if the reference in sections 48(5), 49(4),
50(3), 51(3), 52(3) and 54(3) to an express contrary intention
in the trust instrument were a reference to the provisions of
the trust instrument.
241 Application of Act to existing custodian trustees
(1) Without limiting section 240, this Act applies in relation to an
existing custodian trustee as if—
(a) the existing custodian trustee had been appointed as a
custodian trustee under section 47; and
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