Charities Act 1978

This Act may be cited as the Charities Act 1978.

The several provisions of this Act shall come into operation on a day or the respective days to be fixed by proclamation or successive proclamations of the Governor in Council published in the Government Gazette.

is less than $500 000 or an amount fixed under section 4A, whichever is the greater; or

does not exceed $50 000 or an amount fixed under section 4A, whichever is the greater and the property is given for specific charitable purposes which fail;

Subject to subsection (2), the circumstances in which the original purposes of a charitable gift can be altered to allow the property given or part of it to be applied cy près shall be as follows—

where the original purposes, in whole or in part—

have been as far as may be fulfilled; or

cannot be carried out, or not according to the directions given and to the spirit of the gift; or

where the original purposes provide a use for part only of the property available by virtue of the gift; or

where the property available by virtue of the gift and other property applicable for similar purposes can be more effectively used in conjunction, and to that end can suitably, regard being had to the spirit of the gift, be made applicable to common purposes; or

where the original purposes were laid down by reference to an area which then was but has since ceased to be a unit for some other purpose, or by reference to a class of persons or to an area which has for any reason since ceased to be suitable, regard being had to the spirit of the gift, or to be practical in administering the gift; or

where the original purposes, in whole or in part, have, since they were laid down—

been adequately provided for by other means; or

ceased, as being useless or harmful to the community or for other reasons, to be in law charitable; or

ceased in any other way to provide a suitable and effective method of using the property available by virtue of the gift, regard being had to the spirit of the gift.

Subsection (1) shall not affect the conditions which must be satisfied in order that property given for charitable purposes may be applied cy près, except in so far as those conditions require a failure of the original purposes.

References in this section to the original purposes of a gift shall be construed, where the application of the property given has been altered or regulated by a scheme, by or under an Act or otherwise, as referring to the purposes for which the property is for the time being applicable.

It is hereby declared that a trust for charitable purposes places a trustee under a duty, where the case permits and requires the property or some part of it to be applied cy près, to secure its effective use for charity by taking steps to enable it to be so applied.

This section applies to an alteration or regulation by or under an Act of the original purposes of a gift made before, on or after the commencement of section 15(1) of the Health Services (Further Amendment) Act 1998.

Property given for specific charitable purposes which fail shall be applicable cy près as if given with a general charitable intention, where it has been given—

by a donor who, after such advertisements and inquiries as are reasonable, cannot be identified or cannot be found; or

by a donor who has executed a written disclaimer of his right to have the property returned.

For the purposes of this section property shall be conclusively presumed (without any advertisement or inquiry) to have been given by donors who cannot be identified, in so far as it consists—

of the proceeds of cash collections made by means of collecting boxes or by other means not adapted for distinguishing one gift from another; or

of the proceeds of any lottery, competition, entertainment, sale or similar money-raising activity, after allowing for property given to provide prizes or articles for sale or otherwise to enable the activity to be undertaken.

The court may by order direct that property not falling within subsection (2) shall for the purposes of this section be treated (without any advertisement or inquiry) as having been given by donors who cannot be identified, where it appears to the court either—

that it would be unreasonable, having regard to the amounts likely to be returned to the donors, to incur expense with a view to returning the property; or

that it would be unreasonable, having regard to the nature, circumstances and amount of the gifts, and to the lapse of time since the gifts were made, for the donors to expect the property to be returned.

Where property is applied cy près by virtue of this section, the donor shall be deemed to have parted with all his interest at the time when the gift was made; but where property is so applied as having been given by donors who cannot be identified or cannot be found, and is not so applied by virtue of subsection (2) or (3)—

the scheme shall specify the total amount of that property; and

the donor of any part of that amount shall be entitled, if he makes a claim not later than twelve months after the date on which the scheme is made, to recover from the charity for which the property is applied a sum equal to that part, less any expenses properly incurred by the charity trustees after that date in connexion with claims relating to his gift; and

the scheme may include directions as to the provision to be made for meeting any such claim.

For the purposes of this section, charitable purposes shall be deemed to "fail" where any difficulty in applying property to those purposes makes that property or the part not applicable cy près available to be returned to the donors.

In this section, except in so far as the context otherwise requires, references to a donor include persons claiming through or under the original donor, and references to property given include the property for the time being representing the property originally given or property derived from it.

This section shall apply to property given for charitable purposes, notwithstanding that it was so given before the commencement of this Act.

The trustees of any property given for charitable purposes where—

the total value of the corpus of the property is less than $500 000 or an amount fixed under section 4A, whichever is the greater; or

the total value of the corpus of the property does not exceed $50 000 or an amount fixed under section 4A, whichever is the greater, and the property is given for specific charitable purposes which fail—

Upon receiving any application the Attorney-General may make such investigations and inquiries as he thinks fit and may require the trustees to furnish such information, opinions or advice as he thinks fit.

Where the Attorney-General is satisfied either—

that—

the property was given for charitable purposes and may pursuant to section 2 or 3 be applied cy près; and

the total value of the corpus of the property is less than $500 000 or an amount fixed under section 4A, whichever is the greater; or

that—

such property was given for specific charitable purposes which fail; and

the total value of the corpus of the property does not exceed $50 000 or an amount fixed under section 4A, whichever is the greater; and

unless the Attorney-General considers it would be unreasonable to require the applicant to incur expense with a view to identifying or locating the person or persons who would be entitled to the property but for the operation of this section, the consent of the person or persons so entitled has been obtained—

sanction any scheme proposed by the trustees for the application cy près of such property; and

authorize the sale transfer conversion or vesting of any such property by the trustees notwithstanding that the trustees have no such power pursuant to the trust instrument.

The Attorney-General shall not by virtue of this section—

have any greater powers than are exercisable by the court in charity proceedings; or

have power to try or determine—

the title at law or in equity to any property as between a charity or trustee for a charity and a person holding or claiming the property or an interest in it adversely to the charity;

any question as to the existence or extent of any charge or trust;

any dispute as to whether the trustees are trustees of a charitable trust; or

any dispute as to whether the property may be applied cy près pursuant to section 2 or 3.

In any case where the Attorney-General in accordance with subsection (2) sanctions any scheme or gives any authority the trustees shall not thereafter be subject to any liability for breach of trust arising solely from their application of property cy près in accordance with such scheme or authority.

The Attorney-General must cause a copy of an Order made under section 4A to be laid before each House of the Parliament within 10 sitting days after the Order is published in the Government Gazette.

An Order made under section 4A may be disallowed by resolution of a House of the Parliament within 15 sitting days after the Order is tabled under subsection (1).

If an Order made under section 4A is not disallowed under subsection (2), the Order takes effect on the later of—

the date specified in the Order; or

the date which is the day after the expiry of the period for disallowance under subsection (2).

If an Order made under section 4A is disallowed under subsection (2), the Clerk of the Parliaments must cause notice of the disallowance to be published in the Government Gazette.

The trustees of property given for charitable purposes, the total value of which is the corpus of which is less than $500 000 or an amount fixed under section 4A, whichever is the greater may, in writing and upon payment of the prescribed fee (if any), apply to the Attorney-General for the opinion or advice of the Attorney-General on any matter affecting the performance of the duties of the trustees as such.

Upon receiving any application the Attorney-General may make such investigations and inquiries as he thinks fit and may require the trustees to furnish such information, opinions or advice as he thinks fit.

A trustee acting in accordance with the opinion or advice of the Attorney-General given under this section with respect to the charity shall be deemed as regards his responsibility for so acting, to have acted in accordance with his trust, unless, when he does so, either—

he knows or has reasonable cause to suspect that the opinion or advice was given in ignorance of material facts; or

the decision of the court has been obtained on the matter or proceedings are pending to obtain a decision.

Subject to any express provision to the contrary in the trust instrument, the receipt in writing of the treasurer or other proper officer for the time being of any charitable institution association or other body shall be a sufficient discharge for any payment of money or transfer of property thereto pursuant to a trust instrument and trustees making any such payment or transfer shall not be concerned to inquire as to the application of any money paid or property transferred.

The provisions of subsection (1) shall not apply to any trust instrument executed before the commencement of this section.

The Governor in Council may make regulations for or with respect to—

prescribing forms for applications made under this Act;

prescribing fees for applications made under this Act;

generally, all such matters and things as are authorized or permitted to be prescribed or are necessary or expedient to be prescribed for carrying this Act into effect.

Regulations made under this Act—

may be of general or limited application;

may differ according to differences in time, place or circumstances;

in the case of regulations prescribing fees under subsection (1)(b), may provide for fees calculated on a sliding scale.

The trustees of any property given for charitable purposes in respect of which this Part applies may—

establish one or more investment common funds for the collective investment of that property held by or in the custody of the trustees;

invest that property held by or in the custody of the trustees in one or more investment common funds.

The trustees of any property given for charitable purposes in respect of which this Part applies, from time to time without liability for breach of trust, may bring into or withdraw from any investment common fund the whole or any part of that property, despite any direction to the contrary (whether express or implied) contained in the trust instrument.

Subject to subsection (4), the trustees of any property given for charitable purposes in respect of which this Part applies must periodically distribute the income of each investment common fund among the trusts participating in the common fund, having regard to the extent of the participation by each trust in the common fund during the relevant accounting period.

The trustees of any property given for charitable purposes in respect of which this Part applies, if they consider it expedient to do so, may, from time to time—

add some portion of the income of the common fund to the capital of the common fund; or

use some part of the income to establish or augment a fund or funds as a provision against capital depreciation or reduction of income.

The trustees of any property given for charitable purposes in respect of which this Part applies may, out of the annual income of a trust in an investment common fund, periodically deduct an amount not exceeding 5% of that annual income as commission for the administration of that trust.

The commission deducted in accordance with subsection (5) is to be received and accepted by the trustees of any property given for charitable purposes in respect of which this Part applies as full payment to them for the costs of administration of the trust in an investment common fund.

The trustees of any property given for charitable purposes in respect of which this Part applies must not make any other charges on a trust in an investment common fund in addition to the commission received under subsection (6), except in accordance with the trust instrument.