Anglican Church of Australia Trust Property Act 1917 (NSW)

Anglican Church of Australia Trust Property Act 1917 No 21 An Act to consolidate and amend the Acts relating to property held upon any trust for or for the use, benefit, or purposes of the Church of England in dioceses within New South Wales, and the Acts conferring powers upon the synods of the said dioceses with reference to the said property; and for other purposes. Preamble WHEREAS the Acts relating to property held upon any trust for or for the use, benefit, or purposes of the Church of England in dioceses within New South Wales, and the Acts conferring powers upon the synods of the dioceses with reference to the said property are numerous, ambiguous, and discursive, and it is therefore expedient to consolidate and amend the same— Be it therefore enacted by the King's Most Excellent Majesty, by and with the advice and consent of the Legislative Council and Legislative Assembly of New South Wales in Parliament assembled, and by the authority of the same, as follows— Part 1A Preliminary 1 Name of Act This Act may be cited as the Anglican Church of Australia Trust Property Act 1917. Part 1 Repeal and amendment 2 Repeal (1) The Acts mentioned in Schedule 1 are hereby repealed, but notwithstanding the said repeal the said Acts shall continue to apply as if unrepealed to the Diocese of Newcastle and to all the trust property matters and things of or pertaining to the said diocese until the synod of the said diocese shall make an ordinance declaring a desire to have the benefit of this Act, and shall in the name and under the hand of the Bishop of the said diocese notify such ordinance in the Gazette, and immediately upon such notification and thenceforth the provisions of this Act shall apply to the said diocese and to all the trust property matters and things of or pertaining to the said diocese. (2) The said repeal shall not affect ordinances passed, trustees constituted as bodies politic and corporate, persons elected or appointed trustees or members of bodies politic and corporate, property vested, acts and things validated, or certificates given under the said Acts, or any of them. (3) Except so far as there is anything in this Act inconsistent therewith, this Act shall apply to all matters and things made, done, or commenced under the said repealed Acts, and at the commencement of this Act of any force or effect or capable of acquiring any force or effect by virtue of the said repealed Acts as if this Act had been in force at the time they were made, done, or commenced, and they were made, done, or commenced hereunder. 3 Amendment (1) Sections 5 and 7 of the Anglican Church of Australia Constitutions Act 1902 and clauses 3 and 6 of the Schedule to the said Act and all Acts and parts of Acts relating to church trust property shall, so far as may be necessary for the purposes of this Act, be read as amended and supplemented by this Act. (2) In the case of the Diocese of Sydney the following subsections shall apply— (a) The present members of the council referred to in Saint James' School Compensation Trust Act, assented to the twenty-seventh day of August, one thousand eight hundred and eighty-six, and such persons as shall from time to time be members of the said council, including the Archbishop of Sydney for the time being as ex officio president, shall be and they are hereby constituted a body politic and corporate by the name of "Sydney Church of England Grammar School Council", and by such name they shall have perpetual succession and a common seal, and shall sue and be sued, or shall otherwise appear and answer and be answered, and may take and hold to them and their successors by grant, will, or otherwise, any real or personal property, and for any estate or interest therein. (b) All property real and personal which immediately before the passing of this Act was vested in any person or persons other than the Church of England Property Trust Diocese of Sydney upon any trust for the purposes of the school referred to in the said Saint James' School Compensation Trust Act shall by virtue of this Act and without any other instrument vest in the said body constituted by subsection (a) upon the same trusts respectively for the purposes of the said school upon which the said property was held immediately before the passing of this Act, and it shall be lawful for the Church of England Property Trust Diocese of Sydney by deed or deeds under its corporate seal to assign and transfer to the said body constituted by subsection (a) at one time or from time to time all or any part or parts of other real and personal property now or hereafter to be held by the said church property trust upon any trust for the purposes of the said school. (c) (Repealed) Part 2 Interpretation 4 Definitions In this Act unless inconsistent with the context or subject matter— Bishop includes Archbishop and the Bishop or Archbishop for the time being. Church of England means Church of England in Australia. Church trust property includes all or any part of any real and personal property which may for the time being be subject to any trust whether by dedication, consecration, trust instrument, or otherwise, for or for the use, benefit, or purposes of the Church of England in any diocese, and each such diocese is referred to as the diocese for which the church trust property in question is held. Corporate trustees and Corporate body of trustees respectively include corporate bodies of trustees now or hereafter to be constituted for any diocese under the provisions of the Church of England Trust Property Incorporation Act 1881 hereby repealed or of this Act. Diocese includes any diocese now or hereafter to be formed and situated within New South Wales, or partly within and partly outside New South Wales and the identity of a diocese shall be deemed not to be affected by the formation wholly or partly thereout of a new diocese nor by any other alteration of boundaries or area nor by any change of name. Parish includes any parish or ecclesiastical district now or hereafter to be formed and situated within New South Wales. Parish council means the body of persons, if any, in which the general powers of governing the affairs of a parish are for the time being vested under the provisions of any ordinance of the synod of a diocese. Person includes corporate trustees and a bishop. Purposes includes religious, educational, cemetery, and all other purposes of the Church of England, whether such purposes are within or beyond the diocese or the State. Standing committee includes any general governing council of a diocese created by or under the authority of its synod. Synod includes any synod now or hereafter to be convened or held in pursuance of the provisions of the Anglican Church of Australia Constitutions Act 1902, or any Act amending or taking the place of the same. Trust instrument includes ordinances of synod and Acts of Parliament, though not expressly mentioned herein. Trustee, new trustee, respectively, include corporate trustees and a bishop. Part 3 Trustees constitution and succession 5 Existing corporate bodies The following bodies, that is to say— Church of England Property Trust Diocese of Sydney, Church of England Property Trust Diocese of Goulburn, The Corporate Trustees of the Diocese of Grafton and Armidale, Church of England Property Trust Diocese of Bathurst, Trustees of the Church Property for the Diocese of Riverina, The Corporate Trustees of the Diocese of Grafton, are hereby declared to have been duly constituted as bodies politic and corporate by the said names respectively, under the provisions of the Church of England Trust Property Incorporation Act 1881, and notwithstanding the repeal of the said Act they shall remain so constituted as aforesaid, and, except so far as there is anything in this Act inconsistent therewith, this Act shall apply to them as if this Act had been in force at the time they were constituted and they were constituted hereunder. The bishop of a diocese shall ex officio be a member of the corporate body so constituted as aforesaid for such diocese, and the number of members shall be increased by one for the said purpose. 6 New corporate bodies The synod of each diocese, other than the dioceses for which the said bodies in the preceding section mentioned were and remain so constituted as aforesaid, may at any time elect such persons as such synod desires, should together with the bishop of the diocese, ex officio, be incorporated as trustees for such diocese, and the bishop of such diocese shall notify such election in the Gazette, and immediately upon such notification and thenceforth the said persons and such persons as may from time to time be members of such body, together with the bishop of the diocese, ex officio, shall be and they are hereby constituted a body politic and corporate, by the name of incorporation mentioned in such notification, and by such name they shall have perpetual succession and a common seal, and shall sue and be sued, or shall otherwise appear and answer and be answered, and may take and hold to them and their successors by grant, will, or otherwise any real or personal property, and for any estate or interest therein. 6A Term of office of member of corporate body of trustees (1) This section applies to the Diocese of Sydney but does not apply to any other diocese until an ordinance of the synod of that other diocese is published in the Gazette under the hand of the Bishop declaring that this section applies to that other diocese. (2) The members of a corporate body of trustees for a diocese to which this section applies (members ex officio excepted) hold office— (a) for such term as is specified in respect of all members, or (b) for such different terms as are specified in respect of different members or different classes of members, in an ordinance of the synod of the diocese published in the Gazette under the hand of the Bishop. (3) A member of a corporate body of trustees whose term of office as such a member expires is eligible for re-election as such a member. 7 Common seal and quorum The members for the time being of each corporate body of trustees shall have the custody of the common seal of such corporate body, and the form of such seal and all other matters relating thereto shall from time to time be determined at a meeting of the said corporate body, and three members for the time being of the said corporate body shall constitute a quorum. 8 Authority of members of corporate bodies Any deed or instrument, executed or signed, and any other act, matter, or thing done by any three members of any such corporate body as aforesaid, in pursuance of a resolution of the said corporate body and under the common seal of the said corporate body, shall be as effectual as if the same had been executed, signed, or done by all the members of the said corporate body. 9 Variation by synod It shall be lawful for the synod of a diocese from time to time, by ordinance, to vary the provisions of sections 7 and 8, in so far as the same relate to such diocese, and the said provisions shall, with reference to the said diocese and to all the church trust property matters and things of or held for or pertaining to the said diocese, be read from time to time as so varied by ordinance as aforesaid. 10 Change of name It shall be lawful for the synod of a diocese from time to time, by ordinance, to change the name of the corporate body of trustees constituted for such diocese. 11 Alteration of number of members of corporate body It shall be lawful for the synod of a diocese from time to time, by ordinance, to declare what shall be the number of members of the corporate body of trustees constituted for such diocese, and in case of increase in the number such increase shall be effected by the synod of such diocese electing an additional member, or additional members, and in case of decrease in the number such decrease shall be effected by the synod of such diocese not electing a person, or persons, to fill a vacancy, or vacancies, declared under the provisions of this Act. 12 Vacancies in membership of corporate bodies It shall be lawful for the synod of a diocese from time to time, by resolution, to declare the existence of a vacancy, or vacancies, in the office of member of the corporate body of trustees of such diocese by reason of one or more of the members for the time being of such corporate body having died, resigned office, refused or neglected or having become incapable to act in the said office, or having for the space of six months ceased to reside within the said diocese, or by reason of some other matter to be specified in such resolution, and thereupon or at any time thereafter the synod of the said diocese may elect a person or persons to be, and such person or persons shall thereupon become a member or members of the said body in the place or places of the member or members referred to in the said resolution. 13 Alteration of number of trustees It shall be lawful for the synod of a diocese for which any church trust property is for the time being held from time to time, by ordinance, to declare what shall be the number of trustees of such property, and in case of increase in the number such increase shall be effected by the synod of such diocese electing a new trustee, or new trustees, by way of addition, and in case of decrease in the number such decrease shall be effected by the synod of such diocese not electing a person, or persons, to fill a vacancy, or vacancies, declared under the provisions of this Act. 14 Vacancies in office of trustee It shall be lawful for the synod of a diocese for which any church trust property is for the time being held from time to time by resolution to declare the existence of a vacancy or vacancies in the office of trustee of such property, by reason of one or more of the trustees having died, resigned office, refused or neglected, or having become incapable to act in the said office, or having for the space of six months ceased to reside within the said diocese, or by reason of some other matter to be specified in such resolution, and thereupon or at any time thereafter the synod of the said diocese may elect or by resolution provide for the election of a person or persons to be, and such person or persons shall upon such election become a trustee or trustees in the place or places of the trustee or trustees referred to in the said resolution. 15 New trustees for allocated property It shall be lawful for the synod of a diocese to elect a new trustee or new trustees respectively for church trust property, which may be allocated under the provisions of this Act for such diocese. 16 Separate trustees It shall be lawful for the synod of a diocese for which any church trust property is for the time being held by ordinance to provide for the election of separate trustees for any part or parts of such property, and to elect such separate trustees. 17 Provision cumulative The provisions contained in section 14 are in addition to any other provision for the time being applicable to any church trust property. 18 Bishops Every person for the time being acting and recognised as being the bishop of a diocese, and having been consecrated according to the manner and form prescribed and used by the Church of England, shall in the construction of all Statutes, Acts, grants, deeds, and other instruments be deemed to be and shall be the successor of the bishop of such diocese, notwithstanding that such bishop may not have been appointed under letters patent from the Crown, or may have been consecrated in New South Wales or elsewhere without any mandate or licence being issued by the Crown for such consecration, and shall in all respects within such diocese have and enjoy all and singular the same rights, powers, and privileges, whether created by Statute, Act, grant, deed, or other instrument whatsoever as were enjoyed or possessed therein by the bishops his predecessors, and in the case of the diocese of Sydney the Most Reverend John Charles Wright, DD, the present Archbishop, and all other persons for the time being acting and recognised and consecrated as aforesaid, shall in the construction of such instruments as aforesaid be deemed to be and shall be the successors from time to time of the Bishop of Australia and the Bishop of Sydney. Part 4 Vesting trust property 19 In corporate trustees by consent Any church trust property which may at any time belong to or be vested in any trustee or trustees shall upon the consent of such trustee or trustees, or the majority of them given in writing, or upon the consent of the synod of the diocese for which such property is held, given by or under an ordinance of the synod of such diocese by virtue of such consent and without other assurance in the law, become vested in the corporate trustees of such diocese: Provided that if in consequence of death or disability the consent of any trustee or trustees cannot be obtained it shall be lawful for the bishop of the diocese to consent in the place of any such trustee. 20 Property vested in bishops All church trust property which may at any time belong to or be vested in the bishop of a diocese shall by force of this Act vest from time to time in the person who for the time being is or is deemed to be the successor of the bishop of such diocese as if such property had belonged or had been originally granted or conveyed to the bishop of such diocese and his successors as a body corporate, and notwithstanding that such person may not have been appointed bishop of such diocese under letters patent from the Crown or may have been consecrated in New South Wales or elsewhere without any mandate or licence being issued by the Crown for such consecration. 21 Property vested in new trustee Upon the election or appointment of a new trustee or new trustees under the provisions of this Act or of any ordinance in force for the time being in any diocese, all the church trust property in respect of which such election or appointment is made shall by virtue of such election or appointment and without other assurance in the law become vested in such new trustee or trustees, either alone or jointly with the surviving or continuing trustee or trustees as the case may require, and every new trustee so elected or appointed as aforesaid shall have the same powers, authorities, and discretions, and shall in all respects act as if he had been originally made a trustee on the creation of the trust. 22 In case of new dioceses etc In each case where, by reason of the formation or proposed formation of a new diocese, or the alteration or proposed alteration of the boundaries or area of a diocese or otherwise, it shall seem expedient to the synod of a diocese for which any church trust property is for the time being held, it shall be lawful for the synod of such diocese by ordinance to allocate such church trust property for any other diocese or proposed diocese, and by virtue of such ordinance and without other assurance in the law such church trust property shall, from the times respectively in such ordinance provided, be held for such other diocese or proposed diocese instead of the diocese making such ordinance and be vested in the new trustee or new trustees respectively then or thereafter to be elected for such church trust property under the provisions of this Act, in the place of the trustee or trustees thereof for the time being, and upon the trusts to which the same shall for the time being be subject, but for or for the use, benefit, or purposes of the Church of England in the diocese or proposed diocese for which the same shall have been so allocated as aforesaid in the place of the diocese making such ordinance. 23 Property vested in separate trustees Upon the election of separate trustees under the provisions of any ordinance in force for the time being in a diocese, the church trust property mentioned in such ordinance shall, by virtue of such election and without other assurance in the law become vested in such separate trustees in the place of the trustees thereof for the time being, and the said separate trustees shall, with respect to such church trust property, have the same powers, authorities, and discretions, and shall in all respects act as if they had been originally made trustees on the creation of the trust. Part 5 Management and investment of trust property 24 Management It shall be lawful for the synod of a diocese for which any church trust property is for the time being held, from time to time by ordinance, to provide and to vary any provision now or hereafter to be made for governing and controlling the management and user of such property for the purposes for which the same is for the time being held in trust, and for all things incidental to such government and control, including constitutions of councils, committees, and other bodies, whether incorporated or not, and such property shall be held, managed, and used under and in accordance with such ordinance accordingly, the provisions of the trust instrument or instruments (if any) to the contrary notwithstanding. 25 Investment It shall be lawful for the synod of a diocese for which any church trust property is for the time being held, from time to time by ordinance, to provide and to vary any provision now or hereafter to be made for the investment of such property, and for the pooling of separate church trust properties for the purpose of investment, and for averaging gains, losses, and interests, and for all other matters and things incidental to such investment and pooling. Part 6 Sale, exchange, mortgage, lease etc of trust property 26 Synod may direct sales or other dealings (1) It shall be lawful for the synod of the diocese for which any church trust property is for the time being held if it shall appear to such synod expedient by reason of circumstances subsequent to the creation of the trusts of such property by ordinance to direct that such property be sold, exchanged, mortgaged, or let on mining, building, occupation, or other leases, or otherwise dealt with in manner provided by such ordinance, and to provide for accepting the surrender of any lease thereof and for laying out and dedicating parts thereof for any purpose or purposes, and to provide for the application of the real and personal property arising from any such sale, exchange, mortgage, letting, or other dealing as aforesaid: Provided that in the cases of the Diocese of Canberra and Goulburn no such ordinance in respect of property held for the sole benefit of some particular parish shall be assented to under the Anglican Church of Australia Constitutions Act 1902, or any Act amending or taking the place of the same, without the consent in writing of a majority of the members of the parish council (if any) for the time being of the parish, and in the case of property gratuitously granted or assured within twenty years preceding the time being by any private donor without the like consent of such donor if living. (2) Despite subsection (1), an ordinance in relation to property held for the sole benefit of some particular parish in the Diocese of Sydney may only be assented to under the Anglican Church of Australia Constitutions Act 1902— (a) either— (i) with the written consent of a majority of the members of the parish council (if any) for the time being of the parish, or (ii) if the ordinance was passed by at least two-thirds of the members of the synod of the Diocese of Sydney present and voting, and (b) with the written consent of any living private donor who gratuitously granted or assured the property to the parish within the period of 20 years before the date of assent to the ordinance. 26A Certain directions may be given in anticipation (1) This section applies to the Diocese of Sydney but does not apply to any other diocese until an ordinance of the synod of that other diocese is published in the Gazette under the hand of the Bishop declaring that this section applies to that other diocese. (2) The synod of a diocese to which this section applies may by ordinance— (a) direct that, upon specified real property becoming church trust property held for the diocese, it may be mortgaged, let on mining, building, occupation or other leases or otherwise dealt with as specified in the ordinance, and (b) provide for the application of the personal property arising from any such mortgage, letting or other dealing. 27 Deeds of conveyance etc It shall be lawful for the synod of a diocese by ordinance to direct what person or persons shall execute the deed or deeds or other instrument or instruments, and do all acts, measures, and things necessary for the purpose of carrying into effect the sale, exchange, mortgage, lease, or other dealing directed by ordinance of the synod of such diocese under the provisions of this Act, and the deed or deeds, or other instrument or instruments executed, and the acts, measures, and things done by such person or persons shall take effect as if the trust instrument relating to the church trust property comprised in the said ordinance had contained a power enabling such person or persons to effect such sale, exchange, mortgage, lease, or other dealing, and so as to operate, if necessary, by way of revocation and appointment of the use or otherwise as the said ordinance shall direct. 27A Certain directions may be given by resolution (1) This section applies to the Diocese of Sydney but does not apply to any other diocese until an ordinance of the synod of that other diocese is published in the Gazette under the hand of the Bishop declaring that this section applies to that other diocese. (2) Subject to this section, where the synod of a diocese to which this section applies is authorised by section 26, 26A or 27 to give a direction for or with respect to a mortgage, the direction may be given instead— (a) by resolution of its synod or of the standing committee of its synod, and (b) in the case of the Diocese of Sydney—also by resolution of the Sydney Church of England Finance and Loans Board, being, in either case, a resolution that does not contravene or fail to comply with any ordinance referred to in subsection (3) or (4) that is applicable. (3) A direction may not be given under subsection (2) where— (a) the same direction, if given by ordinance under section 26, would require a consent referred to in that section before it could be assented to, and (b) that consent has not been given. (4) The synod of a diocese may, by ordinance, restrict or regulate the right of its members and of the members of its standing committee to move a resolution referred to in subsection (2) and prescribe the form that any such resolution shall take, and the synod of the Diocese of Sydney may similarly restrict, regulate and prescribe in relation to the Sydney Church of England Finance and Loans Board. (5) A resolution passed under subsection (2) shall be certified— (a) by the Registrar of the diocese for which is held the church trust property to which the resolution relates or by a person for the time being acting in that office, or (b) by a secretary of the synod of that diocese or by a person for the time being acting in that office. 28 Power of corporate trustees to let in certain cases A corporate body of trustees may let the church trust property vested in such body on lease for such term or terms as shall from time to time be approved of by the synod of the diocese for which such corporate body is constituted, or if the synod be not in session then as shall be approved of by the standing committee of such diocese: Provided, however, that until the first session of such synod after this Act comes into force in such diocese such corporate body may let such church trust property for any term of years not exceeding seven. 29 Protection of purchasers etc No purchaser, mortgagee, lessee, or other person, or the Registrar-General, upon any sale, exchange, mortgage, lease, or other dealing purporting to be made under the powers granted by or under this Act, shall be concerned to see or inquire into the necessity or propriety thereof, or the mode of exercising the same nor be affected by notice that the exercise of the power is unauthorised, irregular, or improper, nor be concerned to see to the application or disposition of any purchase, mortgage, or other money or rent paid by him. 30 Discharge for purchase moneys etc The moneys (if any) arising from any sale, exchange, mortgage, lease, or other dealing purporting to be made under the powers granted by or under this Act shall be paid to the trustee or trustees in whom the property, the subject matter of such sale, exchange, mortgage, lease, or other dealing immediately theretofore vested, or to such other person or persons as the ordinance (if any) directing such sale, exchange, mortgage, lease, or other dealing may provide. And the receipt of the said trustee or trustees, or other person or persons, as the case may be, shall be an effectual discharge therefor. 31 Temporary investments Pending the application of any moneys to arise as aforesaid, the same may, after payment thereout of all proper costs, charges, and expenses, be invested in Government or real securities in New South Wales or in the Commonwealth of Australia, or on fixed deposit in any bank, or otherwise as the ordinance directing such dealing, or any ordinance of the synod of the said diocese in force for the time being and applicable thereto may provide. Part 7 Variation of trusts 32 Power of synod to vary trusts etc In each case where by reason of circumstances subsequent to the creation of the trusts, including trusts declared under this section, to which any church trust property is for the time being subject, it has in the opinion of the synod of the diocese for which such property is held become impossible or inexpedient to carry out or observe such trusts, it shall be lawful for the synod of such diocese by ordinance to declare such their opinion, and by the same or any subsequent ordinance to declare other trusts for or for the use, benefit, or purposes of the Church of England within the said diocese instead of such first-mentioned trusts, and such first-mentioned trusts shall thereupon by force of the said ordinance cease and determine, and such property shall thereupon be held upon such other trusts accordingly: Provided that such property shall be dealt with and applied for the benefit of the Church of England in the parish or parishes (if any) for the benefit of which such property was immediately before such ordinance held in trust, and for the same purposes as nearly as may be as the purposes for which such property was immediately before such ordinance held unless the synod of such diocese shall by ordinance declare that by reason of circumstances, subsequent to the creation of the first-mentioned trusts, it is, in the opinion of the synod, impossible or inexpedient to deal with or apply such property or some part thereof for the use or benefit of such parish or parishes or for the same or the like purposes, in which case such property or such part thereof may be dealt with and applied for the use and benefit of the Church of England for such other purposes and in such other parish or parishes in the said diocese or otherwise as shall be declared by ordinance of the synod of the said diocese. 32A Limited substitution of trust of income (1) In this section— church trust property does not include church trust property held for the sole benefit of a particular parish. prescribed period in relation to an ordinance made under subsection (3) means— (a) where the ordinance specifies a particular period of 12 months as the prescribed period for the purposes of this section—that period of 12 months, or (b) in any other case—the period of 12 months that next succeeds assent to the ordinance by the Bishop of the diocese. (2) This section applies to the Dioces