Table of provisions



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Australian Capital Territory



anglican church of australia trust property act, 1917
(new south wales)

Updated as at 31 December 1997



TABLE OF PROVISIONS

Section


Part III—Trustees Constitution and
Succession

5. Existing corporate bodies

6. New corporate bodies

7. Common seal and quorum

8. Authority of members of corporate bodies

9. Variation by synod

10. Change of name

11. Alteration of number of members of corporate body

12. Vacancies in membership of corporate bodies

13. Alteration of number of trustees

14. Vacancies in office of trustees

15. New trustees for allocated property

16. Separate trustees

17. Provision cumulative

18. Bishops

Part V—Management and Investment of
Trust Property

24. Management

25. Investment

Part VI—Sale, Exchange, Mortgage, Lease
etc. of Trust Property

26. Synod may direct sales etc.

26A. Certain directions may be given in anticipation

27. Deeds of conveyance etc.

27A. Certain directions may be given by resolution

28. Power of corporate trustees to let in certain cases

31. Temporary investments

Part VII—Variation of Trusts

32. Power of synod to vary trusts etc.

32A. Limited substitution of trust of income

Part IX—General

37. Repeal or amendment of ordinance

38. Delegation of powers etc. by bishop

39. Delegation of powers etc. of bishop by ordinance

40. Delegation of powers etc. of synod

41. Validity of acts etc. under delegation

42. Notification as to trustees

45. New dioceses



Australian Capital Territory



anglican church of australia trust property act, 19171
(new south wales)


Part III—Trustees Constitution
and Succession


Existing corporate bodies

5. 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 has 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.

New corporate bodies

6. The synod of each diocese, other than the diocese 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.

Common seal and quorum

7. 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.

Authority of members of corporate bodies

8. 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.

Variation by synod

9. It shall be lawful for the synod of a diocese from time to time, by ordinance, to vary the provisions of sections seven and eight, 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.

Change of name

10. 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.

Alteration of number of members of corporate body

11. 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.

Vacancies in membership of corporate bodies

12. 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.

Alteration of number of trustees

13. 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.

Vacancies in office of trustees

14. 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.

New trustees for allocated property

15. 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.

Separate trustees

16.3 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.

Provision cumulative

17. The provisions contained in section fourteen are in addition to any other provision for the time being applicable to any church trust property.

Bishops

18. 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, the Church of England in Australia or the Anglican Church of Australia, 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, D.D, the present Archbishop, and all other persons for the time being acting and recognised and consecrated and 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 V—Management and Investment of Trust Property

Management

24. 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.

Investment

25. 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 VI—Sale, Exchange, Mortgage, Lease etc. of Trust Property

Synod may direct sales etc.

26. 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 dioceses of Sydney and 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, in its application in the Australian Capital Territory, 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.

Certain directions may be given in anticipation

26A. (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.

Deeds of conveyance etc.

27. 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.

Certain directions may be given by resolution

27A. (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.

Power of corporate trustees to let in certain cases

28. 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 than 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.

Temporary investments

31. 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, credit union or building society, or otherwise as the Act directing such dealing, or any Act of the synod of the said diocese in force for the time being and applicable thereto may provide.

Part VII—Variation of Trusts

Power of synod to vary trusts etc.

32. 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 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.



Limited substitution of trust of income

32A. (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 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.

(3) The synod of a diocese to which this section applies may by ordinance declare that it is temporarily inexpedient to carry out or observe the trusts to which the income from that property, or a specified part of that income, is subject.

(4) Where the synod of a diocese makes an ordinance under subsection (3) with respect to any income it may, by the same or a subsequent ordinance, declare that, during the prescribed period for the ordinance, that income is held upon trusts, specified in the ordinance, for or for the use, benefit or purposes (whether within or beyond that diocese or the State) of the Anglican Church of Australia.

(5) Income to which a declaration under subsection (4) relates shall, during the prescribed period for the ordinance by which the declaration is made, be held upon the trusts specified in that ordinance to the exclusion of any other trusts to which it was subject and shall, at the expiration of that prescribed period, become again subject to those other trusts.

Part IX—General

Repeal or amendment of ordinance

37. Subject and without prejudice to any past operation of any ordinance made or resolution passed under the provisions of this Act or any Act hereby repealed, and subject and without prejudice to any estate, right, privilege, obligation or liability vested, acquired, accrued, or incurred under any such ordinance or resolution—

(a) the synod of a diocese may by ordinance repeal or amend—

(i) any ordinance made by that synod;

(ii) any resolution passed by that synod or its standing committee; or

(iii) where the diocese is the Diocese of Sydney—any resolution of the Sydney Church of England Finance and Loans Board;

(b) the standing committee of the synod of a diocese may by resolution repeal or amend any resolution of that committee; and



(c) the Sydney Church of England Finance and Loans Board may by resolution repeal or amend any resolution of that Board.

Delegation of powers etc. by bishop

38. During the absence from New South Wales of a bishop of a diocese, a commissary appointed by such bishop may exercise all the powers and functions, and do and make all the things referred to in this Act, or such of them as shall be referred to in such appointment, as the case may be, in the place of such bishop.

Delegation of powers etc. of bishop by ordinance

39. During the absence of a bishop as aforesaid and in cases where no commissary is appointed as aforesaid or some only of such powers, functions, and things are referred to in the appointment of such commissary, or during the incapacity of a bishop of a diocese arising from illness or any cause other than such absence as aforesaid, or during a vacancy in the see, the person or persons appointed for the purpose or purposes by ordinance of the synod of such diocese or in default of such ordinance or so far as the same shall not extend to any of such purposes the person next in ecclesiastical rank or degree in such diocese and resident therein may exercise all the powers and functions and do and make all the things referred to in this Act or such of them as are not referred to in any such appointment of a commissary as aforesaid, as the case may be, in the place of such bishop.

Delegation of powers etc. of synod

40. During the recess of the synod of a diocese such committee, council, or other body of persons (if any) as shall from time to time be constituted or appointed for the purpose by or under ordinance of the synod of such diocese may, in place of the synod of such diocese, exercise such of the powers and functions, and do and make such of the things referred to in this Act as shall from time to time be determined by ordinance of the synod of such diocese, and the synod of such diocese may, for the purpose aforesaid, from time to time by ordinance regulate the procedure of such committee, council, or other body of persons: Provided that no ordinance passed by any such committee, council, or other body of persons as aforesaid shall take effect or have any validity unless within one month after the passing thereof the same shall be assented to under the Anglican Church of Australia Constitutions Act, 1902 in its application in the Australian Capital Territory.

Validity of acts etc. under delegation

41. The preceding provisions of this Act shall, so far as applicable, apply to all powers, functions, and things so exercised, done, and made in the place of the bishop of the diocese and in the place of the synod of the diocese as in this Part respectively provided for, as if such powers, functions, and things had been validly exercised, done, and made by the bishop of the diocese, or by the synod of the diocese, as the case may be.

Notification as to trustees

42. Each ordinance made under this Act under sections nine, ten, eleven, thirteen, or sixteen, and each resolution and election made under sections twelve, fourteen, fifteen, or sixteen, and each consent given under section nineteen3, shall be forthwith notified in the Gazette under the hand of the bishop of the diocese.

New dioceses

45. (1) A provincial synod convened or held in pursuance of the provisions of the Anglican Church of Australia Constitutions Act, 1902, in its application in the Australian Capital Territory, may make ordinances for and with respect to—

(a) the formation of new dioceses; and

(b) the alteration of boundaries of dioceses.

(2) A new diocese shall not be formed by separation of any area from a diocese unless the synod of the diocese consents by an ordinance to the separation.

(3) A new diocese shall not be formed by the union of two or more dioceses, or parts of dioceses, unless the synod of each of those dioceses consents by an ordinance to the union.

(4) The boundaries of a diocese shall not be altered unless the synod of the diocese consents by an ordinance to the alteration.

(5) In the case of the Diocese of Sydney the consent shall not be valid unless the ordinance is passed with an absolute majority in each order.

NOTES

1. The Act shown in this reprint comprises the Anglican Church of Australia Trust Property Act, 1917, of the State of New South Wales (No. 21, 1917) as amended by the Church of England Trust Property (Amendment) Act, 1923, Church of England Trust Property (Amendment) Act (No. 2), 1923 and the Church of England Trust Property (Amendment) Act 1976 of that State as applied in the Australian Capital Territory by section 16 of the Anglican Church of Australia Trust Property Act 1928.

The Anglican Church of Australia Trust Property Act 1928 is published separately, and contains definitions of “the Act” and “the Territory” to which reference should be made.

The amendments made by the Anglican Church of Australia Trust Property Act 1928, are incorporated in this reprint as indicated in the Table below.

Citation of Laws—The Self-Government (Citation of Laws) Act 1989 (No. 21, 1989) altered the citation of most Ordinances so that after Self-Government day they are to be cited as Acts. That Act also affects references in ACT laws to Commonwealth Acts.

2. The Legislation (Republication) Act 1996 (No. 51, 1996) authorises the Parliamentary Counsel in preparing a law for republication, to make certain editorial and other formal amendments in accordance with current legislative drafting practice. Those amendments make no change in the law. Amendments made pursuant to that Act do not appear in the Table of Amendments but details may be obtained on request from the Parliamentary Counsel’s Office.



Table of Acts

Act

Number

and year


Date of

notification

in Gazette


Date of

commencement



Application, saving or transitional provisions




(Reprinted as at 31 August 1992)

Financial Institutions (Removal of Discrimination) Act 1997

88, 1997

1 Dec 1997

Ss. 1 and 2: 1 Dec 1997
Remainder: 31 Dec 1997 (see Gazette 1997, No. S442)




Table of Amendments

ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted

Provision How affected
S. 18 am. No. 19, 1928 (as am. by No. 42, 1980)

S. 26 am. No. 19, 1928 (as am. by No. 42, 1980)

S. 31 am. No. 88, 1997

S. 32A am. No. 19, 1928 (as am. by No. 42, 1980)

S. 37 am. No. 19, 1928 (as am. by No. 42, 1980)

S. 40 am. No. 19, 1928 (as am. by No. 42, 1980)

S. 45 am. No. 19, 1928 (as am. by No. 42, 1980)

3. Ss. 16 and 42—Subsections 16 (2) and (3) of the Anglican Church of Australia Trust Property Act 1928 provide as follows:

“(2) For the purpose of applying section forty-two of the Act to the Territory in accordance with subsection (1) of this section, that section shall be read as if after the word ‘nineteen’ there were inserted the words ‘or under section four of the Anglican Church of Australia Trust Property Act 1928-1941’.”

“(3) Section 16 of the Act applies in the Territory in accordance with this section as if the following subsections were added at the end thereof:

‘(2) Without limiting the application of subsection (1), the synod of the Diocese of Canberra and Goulburn may appoint, by ordinance, an incorporated trustee company to be the sole trustee, or one of the trustees, of any church trust property held for that diocese.

‘(3) In subsection (2), “incorporated trustee company” means an incorporated company the objects of which include the object of acting as trustee of church trust property held for the Diocese of Canberra and Goulburn in pursuance of an appointment made by ordinance of the synod of that diocese.’.”



Unauthorised version prepared by ACT Parliamentary Counsel's Office


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