Uniting Church in Australia Act 1977 (NSW)

Uniting Church in Australia Act 1977 No 47 An Act to make provision for the inauguration of The Uniting Church in Australia; to constitute The Uniting Church in Australia Property Trust (N.S.W.), to define its powers, authorities, duties and functions, and to provide for the vesting in it of certain property; to provide for the construction of certain instruments; to repeal The Congregational Union Incorporation Act, the Methodist Union Act 1902 and certain other Acts; to amend the Newington College Council Act 1922 and certain other Acts; and for incidental purposes. Part 1 Preliminary 1 Name of Act This Act may be cited as the Uniting Church in Australia Act 1977. 2 Commencement (1) This section and section 1 shall commence on the date of assent to this Act. (2) Except as provided in subsections (1) and (3), this Act shall commence on such day as may be appointed by the Governor in respect thereof and as may be notified by proclamation published in the Gazette. (3) Section 20 (3) shall commence on such day (being a day not earlier than the day appointed and notified under subsection (2)) as may be appointed by the Governor in respect thereof and as may be notified by proclamation published in the Gazette. 3 (Repealed) 4 Repeals Each Act specified in Schedule 1 is repealed. 5 Definitions (1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires: appointed day means the day appointed and notified under section 2 (2). Assembly means the Assembly of the Church referred to in clause 15 (e) of the Basis of Union and includes the Inaugurating Assembly. Basis of Union means the Basis of Union set forth in Schedule 2. Camden College Act means the Act passed in 1876 and intituled "An Act to incorporate Camden College". Congregational Church means The Congregational Union of Australia and the Congregational Unions in each of the States of the Commonwealth, and includes the individual congregational churches which have resolved to enter into union with the Methodist Church and Presbyterian Church and any department, society, auxiliary, activity, fund, service, institution, or any interest of any such individual churches or Unions. conveyance includes transfer, assignment and assurance. Inaugurating Assembly means the first Assembly of the Church which is convened in accordance with the Basis of Union. Methodist Church means the Methodist Church of Australasia and includes any congregation, circuit, department, society, auxiliary, activity, fund, service, institution or interest thereof save and except the Conferences of Fiji, Samoa and Tonga. Presbyterian Church means the Presbyterian Church of Australia comprising the Presbyterian Church of Australia in the State of New South Wales, the Presbyterian Church of Victoria, the Presbyterian Church of Queensland, the Presbyterian Church of South Australia, the Presbyterian Church of Tasmania and the Presbyterian Church in Western Australia subject to the Presbyterian Church of Australia Act 1971. property includes real and personal property and any estate or interest therein and includes any right to receive income. Synod means the Synod of the Church referred to in clause 15 (d) of the Basis of Union within New South Wales. the Church means The Uniting Church in Australia. Trust means The Uniting Church in Australia Property Trust (N.S.W.) constituted by this Act. trust property means property vested in or acquired by the Trust. Uniting Churches means the Congregational Church, the Methodist Church and the Presbyterian Church save and except those congregations of the Presbyterian Church continuing to function after the appointed day under the Scheme of Union of 24 July 1901, as amended, within the meaning of Part 3 of the Schedule to the Presbyterian Church of Australia Act 1971. (2) This Act shall not be construed as operating: (a) to divest any property from or prevent the vesting of any property in: (i) the Council of Newington College, the body politic and corporate constituted by the Newington College Council Act 1922, (ii) The Methodist Trust Association, (iii) the Methodist Overseas-Missions Trust Association, (iv) the Council of Saint Andrew's College, or (v) any person for the purposes of or in connection with the Presbyterian Beneficiary Fund Act 1929, or (b) to repeal or in any way affect the provisions of: (i) the Saint Andrew's College Act 1998, (ii) the Act passed in 1870 and intituled "An Act to enable the Trustees of certain Church Lands at Maitland to appropriate the income derivable from the same for the benefit of the Presbyterian Congregations of Maitland East and Maitland West and to confer extended powers of leasing on the Trustees and for other purposes.", (iii) the Presbyterian Beneficiary Fund Act 1929, (iv) the Presbyterian Church of Australia Act 1900, (v) The Presbyterian Church (New South Wales) Property Trust Act 1936, or (vi) the Presbyterian Church of Australia Act 1971. Part 2 Inauguration of the Church 6 Authority to unite The Uniting Churches are hereby empowered to unite in accordance with the Basis of Union, such union to take effect from the appointed day. 7 Name of Church The Church formed by such union shall be denominated "The Uniting Church in Australia". 8 Inaugurating Assembly The Inaugurating Assembly shall be deemed to have been validly convened. 9 Adoption of Constitution The Assembly is hereby empowered to adopt a Constitution for the Church consistent with the Basis of Union. 10 Amendment of Constitution The Assembly may amend, alter, repeal or replace the Constitution adopted by the Assembly from time to time in accordance with the provisions made by the Constitution in that regard. 11 Further unions etc Notwithstanding anything in this Act or in the Basis of Union it shall be lawful for the Assembly from time to time to resolve that the Church enter into union with other branches of the Christian Church and to determine, declare or interpret matters of doctrine, worship, government and discipline in the Uniting Church. Part 3 Constitution of the Trust 12 Constitution of the Trust (1) There is hereby constituted a corporation under the name of "The Uniting Church in Australia Property Trust (N.S.W.)" which shall, subject to this Act, consist of: (a) three official members, of whom: (i) one shall be the person holding or acting in the office of Moderator of the Synod, (ii) one shall be the person holding or acting in the office of Secretary of the Synod, and (iii) one shall be the person holding or acting in the office of Property Officer of the Synod, and (b) five other persons appointed by the Synod or, where: (i) no appointment has been made to one or more of the offices referred to in paragraph (a), or (ii) fewer than three persons have been appointed to hold all those offices, six other persons so appointed. (2) Subject to this Act, the Inaugurating Assembly shall appoint five persons as members of the Trust and the said five persons: (a) shall be deemed to have been duly appointed pursuant to subsection (1) (b) as members of the Trust holding office as from the appointed day until the end of the annual meeting of the Synod next succeeding the appointed day, and (b) shall be eligible for reappointment as members of the Trust. (3) Subject to this Act, the members of the Trust appointed pursuant to subsection (1) (b) at a Synod after the appointed day: (a) shall take office as members of the Trust immediately after the end of that Synod, (b) shall hold office as members of the Trust until the end of the next annual meeting of the Synod, and (c) shall be eligible for reappointment as members of the Trust. 13 Powers and duties of the Trust (1) Subject to this Act, the Trust may: (a) acquire, hold, deal with and dispose of property of any kind, (b) mortgage, charge or otherwise encumber any of its property, or (c) borrow money for the purposes of the Trust. (2) Subject to this Act, the Trust shall hold trust property in trust for the Church and upon any other trust affecting the property. (3) Subject to subsection (2), the Trust shall hold, manage, administer and otherwise deal with trust property in accordance with the regulations, directions and resolutions of the Assembly. 14 Quorum Three members of the Trust shall constitute a quorum for the purpose of any meeting of the Trust and the decision of a majority of the members present and voting at any meeting of the Trust shall be the decision of the Trust. 15 Vacation of office A member of the Trust appointed pursuant to section 12 (1) (b) shall be deemed to have vacated his office if he: (a) dies, (b) resigns his office by notice in writing to the Trust, (c) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his creditors or makes an assignment of his remuneration for their benefit, (d) becomes a temporary patient, a continued treatment patient, a protected person or an incapable person within the meaning of the Mental Health Act 1958 or a person under detention under Part 7 of that Act, or (e) is removed from office as a member of the Trust by resolution of the Synod or its Standing Committee. 16 Casual vacancies (1) Where the number of members of the Trust for the time being is reduced to less than five, the continuing members of the Trust shall appoint, as members of the Trust filling such of the vacancies as are casual vacancies in the offices of appointed members, until the end of the next annual meeting of the Synod, persons not fewer in number than that required to increase to five the number of members. (2) Subject to subsection (1), where there is a casual vacancy in the office of an appointed member of the Trust, the continuing members of the Trust may appoint a person to fill the vacancy until the end of the next annual meeting of the Synod. 17 Common seal (1) The members for the time being of the Trust shall have the custody of its common seal, and, subject to this section, the form of the common seal and all other matters relating thereto shall be determined by the Trust. (2) The common seal of the Trust shall not be affixed to any instrument except in pursuance of a resolution passed at a duly convened meeting of the Trust, and every instrument to which the common seal is so affixed shall be signed by not less than two members of the Trust. (3) An instrument purporting to have been sealed with the common seal of the Trust and purporting to have been signed by not less than two members of the Trust shall be deemed to have been executed in accordance with subsection (2). 18 Form and execution of certain contracts etc (1) Any deed, instrument, contract or agreement relating to any property or matter which if made or executed by an individual would be by law required to be in writing under seal may be made on behalf of the Trust in writing under the common seal of the Trust. (2) Any instrument, contract or agreement relating to any property or matter which if made by or between individuals would be required to be in writing signed by the parties to be charged therewith may be made on behalf of the Trust in writing by any person acting under its authority express or implied. (3) Any contract relating to any property or matter which if made between individuals would by law be valid although made by parol only (and not reduced to writing) may be made on behalf of the Trust by any person acting under its authority express or implied. (4) Any contract which is entered into or any instrument, contract or agreement which is signed on behalf of the Trust shall be deemed to have been entered into or signed with the express authority of the Trust, if it is entered into or signed in accordance with the resolutions of the Synod for the time being in force pursuant to this Act. 19 Execution under seal by agent etc The Trust may, by writing under its common seal, expressly empower any person in respect of any specific matter, as its agent or attorney to execute any deed, instrument, contract or agreement on its behalf, and any deed signed by such an agent or attorney on behalf of the Trust and under his seal shall bind the Trust and have the same effect as if it were under its common seal. Part 4 Acquisition and vesting of trust property 20 Vesting of certain property in the Trust (1) Subject to this Act, any property that, immediately before the appointed day, was vested in the Methodist Church (N.S.W.) Property Trust, or was vested in any other person in trust for the Methodist Church, is hereby divested from that Trust or other person and is, to the extent that it was so vested, hereby vested (without conveyance) in the Trust and shall be held by the Trust in accordance with the provisions of this Act. (2) Subject to this Act, any property that, immediately before the appointed day, was vested in The Congregational Union of New South Wales, or was vested in any other person in trust for the Congregational Church (except the property referred to in Schedules 5, 6 and 7 to the Fellowship of Congregational Churches (New South Wales) Incorporation Act 1977, and the property referred to in Schedule 2 to the Hunters Hill Congregational Church Act 1977) is hereby divested from that Union or other person and is, to the extent that it was so vested, hereby vested (without conveyance) in the Trust and shall be held by the Trust in accordance with the provisions of this Act. (3) Subject to this Act and to all rights created or conferred by or pursuant to the provisions of the Presbyterian Church of Australia Act 1971 and, without restricting the generality of the foregoing, to section 4 of that Act and clause 18 of the Schedule to that Act, any property that, immediately before the day appointed and notified under section 2 (3), was vested in any person subject to The Presbyterian Church (New South Wales) Property Trust 1936, or was vested in any other person in trust for the Presbyterian Church or any congregation, board or committee of management, session, presbytery, committee, council, board or other institution, organisation or section thereof is hereby divested from that person and is, to the extent that it was so vested, hereby vested (without conveyance) in the Trust and shall be held by the Trust in accordance with the provisions of this Act. (4) If the appointed day is earlier than the day appointed and notified under section 2 (3), subsection (3) of this section does not operate so as to vest any property that, immediately before the appointed day, was not vested in any person subject to The Presbyterian Church (New South Wales) Property Trust Act 1936, and was not vested in any other person in trust for the Presbyterian Church or any congregation, board or committee of management, session, presbytery, committee, council, board or other institution, organisation or section thereof. (5) Subject to this Act, any property that, immediately before the appointed day, was vested in the body corporate constituted under the Camden College Act, or was vested in any other person in trust for Camden College, is hereby divested from that body or other person and is, to the extent that it was so vested, hereby vested (without conveyance) in the Trust and shall be held by the Trust in accordance with the provisions of this Act. (6) Subject to this Act, any property that, immediately before the appointed day, was vested in Tahmoor Children's Homes, a company, or was vested in any other person in trust for that company, is hereby divested from that company or other person and is, to the extent that it was so vested, hereby vested (without conveyance) in the Trust and shall be held by the Trust in accordance with the provisions of this Act. (7) Subject to this Act, any property that, immediately before the appointed day, was vested in the Congregational Homes Trust of N.S.W., a company, or was vested in any other person in trust for that company, is hereby divested from that company or other person and is, to the extent that it was so vested, hereby vested (without conveyance) in the Trust and shall be held by the Trust in accordance with the provisions of this Act. (8) Subject to this Act, all property which pursuant to the foregoing provisions of this section becomes vested in the Trust is freed and discharged from all of the provisions and trusts of The Congregational Union Incorporation Act, the Methodist Church (N.S.W.) Property Trust Act 1969, The Presbyterian Church (New South Wales) Property Trust Act 1936 and the Camden College Act. (9) Except in relation to the trusts declared by the Acts mentioned in subsection (8), the vesting effected by the foregoing provisions of this section shall be without prejudice to: (a) any special trust, (b) any resulting trust, (c) any trust in favour of a donor, (d) any trust in favour of a person other than the Uniting Churches or any one or more of them, and (e) any reservation, mortgage, charge, encumbrance, lien or lease, that, immediately before the appointed day, affected the property vested. (10) The land described in Indenture dated 8 January 1906, registered No 692 Book 799, on which land is situated the Woollahra Congregational Church Manse, is hereby freed and discharged from the trusts declared by the Indenture and is hereby vested (without conveyance) in the Trust and shall be held by the Trust in accordance with the provisions of this Act. (11) Subject to this Act, all property that, immediately before the appointed day, was vested in the body corporate constituted by the Camden College Act to hold upon the terms and conditions and for the purposes set forth in an Indenture dated 21 March 1878, and referred to therein as the "David Livingstone or Work and Trust Bursaries", or was vested in any other person in trust for the purposes therein set forth, is hereby divested from that body or other person and is, to the extent that it was so vested, hereby vested (without conveyance) in the Trust, upon the terms and conditions and for the purposes set forth in the Indenture, as varied by certain orders of the Supreme Court in its equitable jurisdiction made on 30 July 1917, 9 September 1937 and 28 February 1964. (12) No attornment to the Trust by any lessee of land vested in it by this section shall be necessary. (13) In this section, special trust means any trust other than a trust for the general purposes of the Congregational Church, the Methodist Church or the Presbyterian Church. 21 Construction of certain instruments (1) To the extent to which, by a deed, will or other instrument that takes effect on or after the appointed day, any property: (a) is devised, bequeathed, given, granted, released, conveyed or appointed to the Church or to a person (not being the Trust) for, or for the benefit of, or in trust, for the Church for the religious, social, educational or charitable work of the Church, or is declared or directed to be held by any person (not being the Trust) for, or for the benefit of, or in trust for, the Church or the religious, social, educational or charitable work of the Church, (b) is recoverable by the Church or by any person (not being the Trust) for the Church, or (c) is payable to, or receivable by, the Church or any person (not being the Trust) on behalf of the Church or for the religious, social, educational or charitable work of the Church, the deed, will or other instrument shall be read and construed and take effect as though the reference therein to the Church or, as the case may be, to that person, were a reference to the Trust. (2) Any deed, instrument, document, gift, will or other provision in favour of or relating to the Methodist Church coming into effect on or after the appointed day shall be read and construed as though any reference therein to the Methodist Church were a reference to the Church unless the context otherwise provides. (3) Any deed, instrument, document, gift, will or other provision coming into effect on or after the appointed day pursuant to which provision is made in favour of an individual church which prior to the appointed day was affiliated with The Congregational Union of New South Wales and which resolved to enter into union with the Methodist Church and Presbyterian Church or which has been admitted to membership of the Church, or any person or body on behalf of any such individual church, shall be read and construed as though any reference therein to that individual church or that person or body were a reference to the Church unless the context otherwise provides. (4) Any deed, instrument, document, gift, will or other provision coming into effect on or after the appointed day pursuant to which provision is made in favour of: (a) Camden College or the body corporate constituted by the Camden College Act, (b) Tahmoor Children's Homes, a company, or (c) Congregational Homes Trust of N.S.W., a company, shall be read and construed as though any reference therein to that College, body or company were a reference to the Church unless the context otherwise provides. 22 Waiver of certain conditions etc in certain Crown grants No title to any land vested in the Trust by this Act shall be held bad either at law or in equity by reason of any breach or non-performance before, on or after the appointed day of any condition, trust or proviso contained in the grant by the Crown of the land and every provision for forfeiture or reverter in respect of any such breach or non-performance shall be deemed to have been released by the Crown as from the date of the Crown grant. 23 Evidence (1) Subject to subsection (2), a certificate under the common seal of the Trust to the effect that property therein specified is held by it upon trust for the Church shall, in all circumstances and all proceedings whether civil or criminal, be prima facie evidence that the property so specified is so held. (2) Subsection (1) does not apply in relation to any dispute concerning property between the Church and the Presbyterian Church continuing to function after the appointed day. (3) Subsection (1) does not apply in relation to any dispute concerning property between the Church and the Fellowship of Congregational Churches (New South Wales) or between the Church and any church affiliated with the Fellowship of Congregational Churches (New South Wales). (4) A certificate under the common seal of the Trust to the effect that the estate or interest of persons therein specified in land so specified is an estate or interest vested in the Trust by this Act shall, for the purposes of any application by the Trust to be registered under the Real Property Act 1900 as the proprietor of that estate or interest pursuant to the vesting, be conclusive evidence of the matter so certified. 24 Certain rights enforceable by the Trust Where any property is vested in the Trust pursuant to this Act the Trust shall, in relation to that property, have and be subject to all the rights, powers, remedies, liabilities and obligations and may exercise and discharge, in relation to that property, all or any of the rights, powers and remedies which the person in whom the property was theretofore vested or by whom it was theretofore held, would have had and been subject to and might have exercised and discharged in relation to that property if the property had not been divested from him and vested in the Trust. Part 5 Miscellaneous 25 Claims for compensation upon compulsory acquisition etc Subject to any resolution or direction of the Assembly or of any committee appointed by it for the purpose, the Trust may act in relation to the exchange, dedication or compulsory acquisition of any property vested in it, may make claims for compensation in respect thereof and may agree to and settle any such claims, for such considerations, and on and subject to such terms and conditions, as may appear advisable to it. 26 Receipt for certain moneys A receipt for moneys payable to the Trust shall exonerate the mortgagee, purchaser or other person by whom or on whose behalf the moneys are so payable from any liability to see to the application thereof, and from any liability for the loss, misapplication or non-application thereof, if the receipt: (a) is executed in accordance with this Act under the common seal of the Trust, (b) is in writing signed by two members of the Trust, or (c) is in writing signed by a person or persons purporting to be duly authorised for the purpose by the Trust or two members thereof. 27 Exoneration from inquiry No purchaser, mortgagee, lessee or other person dealing with the Trust, and neither the Registrar-General nor any other persons registering or certifying title shall, upon any sale, exchange, mortgage, lease or other dealing purporting to be entered into by the Trust, be concerned to see or inquire into the necessity for or the propriety of the exercise by the Trust of its powers or the mode of exercising them or be affected by notice that the exercise of any such power is unauthorised, irregular or improper. 28 Service of documents The service of any writ, statement of claim, summons or other legal process on the Trust may be effected by serving it on the Moderator, Secretary or Property Officer of the Synod, or on any person appearing to be authorised by the Trust to accept service thereof. 29 Trust may act as executor etc (1) The Trust may: (a) apply for and obtain, or join in applying for and obtaining, probate of the will, or letters of administration of the estate, of a deceased person where the Church has a beneficial interest, vested or contingent, in the estate of that person, or (b) accept appointment, and act, as trustee or co-trustee under and in pursuance of any trust where the trust property is not vested in the Trust by, or pursuant to, this Act, and the trust was created wholly or partly for the benefit of the Church, and may do all things necessary for the exercise or performance of its powers, authorities, duties or functions as executor, administrator or trustee, as the case may be. (2) On behalf of the Trust, a member of the Trust or a person employed by the Trust may, if authorised by the Trust for the purpose, swear an affidavit, make a declaration or statement, give security and do any other act or thing that is, by any charter, Act or rule of court, required to be done by a person applying for or granted probate or letters of administration, or administering a trust, as the case may be. (3) The Trust may: (a) renounce executorship, (b) decline to act as administrator of an estate, or (c) retire, or decline to act, as trustee of property (not being property vested in it by or pursuant to this Act). (4) Any commission or other remuneration earned by the Trust as an executor, administrator or trustee appointed under the authority of this section shall belong to the Trust and shall be used and applied by it for or towards any object or purpose specified or approved by the Assembly in respect thereof. 30 Trust may hold property jointly The Trust may hold or acquire any real or personal property either alone or jointly with another or others as joint tenants or tenants-in-common. 31 Register of former trustees The Trust shall make arrangements for the preservation and custody of the Methodist Church Register of Trustees for New South Wales referred to in section 27 of the Methodist Church (N.S.W.) Property Trust Act 1969, and any extract purporting to be an extract from that register in or to the effect of the form contained in Schedule 5 certified under the common seal of the Trust shall without the production of that register be received and taken in all legal proceedings and in all dealings with land and on all occasions whatever as sufficient evidence of the several matters comprised in the extract in so far as they may relate to the land specified in the certificate. 32 Regulations (1) The Assembly may make regulations for the control, management and administration of, and dealings with, trust property. (2) A certificate signed by the President or Secretary for the time being of the Assembly or by the Moderator or Secretary for the time being of the Synod that specifies in the certificate or an annexure thereto the form of a regulation under subsection (1) and in force on a day specified in the certificate shall be conclusive evidence that the regulation was in force in that form on that day. (3) A regulation under subsection (1) may from time to time be rescinded, revoked, altered or varied by the Assembly but no such rescission, revocation, alteration or variation shall take effect unless it is approved in the same manner as a regulation. 33 Co-operative use of property (1) Where it has been decided in accordance with the regulations, directions and resolutions of the Assembly to enter into a scheme of co-operation with or involving a church of another denomination or any congregation or activity of such a church, being a scheme that involves the use of property vested in the Trust, the Trust may, while the scheme of co-operation continues in force, permit that property to be used, managed and administered in connection with that scheme in such manner and upon such conditions as the Synod, or any committee appointed by it for the purpose, determines or prescribes, and the proceeds of sale or mortgage or any other dealing with any such property and all money collected or held in respect of the scheme of co-operation may be paid and applied in such manner as may be determined or prescribed by the Synod or committee. (2) The conditions that the Synod or committee may determine or prescribe under subsection (1) may include conditions with respect to the making of contributions of money for the acquisition, construction, alteration, maintenance or repair of assets vested in or held on behalf of a co-operating church or congregation and the giving or taking of such security or charge as may be prescribed by any such scheme of co-operation over any property in respect of any contributions of money or in money's worth made or received pursuant to that scheme and any property of the Trust involved in any such scheme is, to the extent prescribed therein, hereby charged. (3) Neither the Registrar-General nor any person dealing bona fide and for value with any property vested in the Trust shall be bound to inquire whether any security or charge referred to in subsection (2) exists or be deemed to have notice thereof or be bound thereby by virtue only of this Act or the existence of any scheme of co-operation under this section and: (a) a conveyance, transfer or other assurance to such a person shall operate as a discharge of any security or charge so referred to, in so far as the property conveyed, transferred or assured would, but for this subsection, be subject thereto, and (b) a mortgage or charge in favour of such a person shall have priority over any security or charge so referred to that affects the property mortgaged or charged in favour of that person. 34 Saving provision (1) The provisions of section 33 shall apply to and in relation to all property at any time held by the Trust except to the extent that any such property is held subject to any express trust expressly forbidding its use in any manner referred to in that section. (2) Subsection (1) shall not prev