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This is a Bill, not an Act. For current law, see the Acts databases.


CHARITABLE TRUSTS AMENDMENT BILL 2010

                   Western Australia


Charitable Trusts Amendment Bill 2010

                        CONTENTS


1.   Short title                                                2
2.   Commencement                                               2
3.   Act amended                                                2
4.   Part VA inserted                                           2
     Part VA -- Gifts by certain trusts for philanthropic
           purposes
     22A.     Terms used                                   2
     22B.     Prescribed trust -- trust instrument
              containing express power to give to
              eligible recipients                          3
     22C.     Prescribed trust -- trust instrument not
              containing express power to give to
              eligible recipients                          3
     22D.     Ancillary provisions                         4
5.   Schedule 1 inserted                                        6
     Schedule 1 -- Declaration by trustees




                         149--1                                 page i
                           Western Australia


                     LEGISLATIVE ASSEMBLY



      Charitable Trusts Amendment Bill 2010


                               A Bill for


An Act to amend the Charitable Trusts Act 1962.



The Parliament of Western Australia enacts as follows:




                                                         page 1
     Charitable Trusts Amendment Bill 2010



     s. 1




 1   1.       Short title
 2            This is the Charitable Trusts Amendment Act 2010.

 3   2.       Commencement
 4            This Act comes into operation on the day on which it receives
 5            the Royal Assent.

 6   3.       Act amended
 7            This Act amends the Charitable Trusts Act 1962.

 8   4.       Part VA inserted
 9            After Part IV insert:
10


11                 Part VA -- Gifts by certain trusts for
12                       philanthropic purposes
13          22A.    Terms used
14                  In this Part --
15                  commencement day means the day on which the
16                  Charitable Trusts Amendment Act 2010 comes into
17                  operation;
18                  eligible recipient means a deductible gift recipient
19                  within the meaning of that term in the Income Tax
20                  Assessment Act 1997 (Commonwealth), whether or not
21                  the deductible gift recipient is a charity at law or
22                  (without limitation) is established for a charitable
23                  purpose or purposes;
24                  prescribed trust means --
25                    (a) a fund referred to in item 2 of the Table in
26                           section 30-15 of the Income Tax Assessment
27                           Act 1997 (Commonwealth); or


     page 2
                                  Charitable Trusts Amendment Bill 2010



                                                                           s. 4



 1            (b)    a trust that is established and maintained for
 2                   charitable or philanthropic purposes and is of a
 3                   class prescribed by the regulations,
 4           whether created before, on or after the commencement
 5           day;
 6           trust instrument means the will or instrument of trust
 7           establishing a prescribed trust, as modified by all
 8           validly executed amendments.

 9   22B.    Prescribed trust -- trust instrument containing
10           express power to give to eligible recipients
11           The trust instrument of a prescribed trust may include
12           an express power for the trustees to provide money,
13           property or benefits to or for an eligible recipient or for
14           the establishment of an eligible recipient.

15   22C.    Prescribed trust -- trust instrument not containing
16           express power to give to eligible recipients
17     (1)   The powers of the trustees of a prescribed trust, whose
18           trust instrument does not contain an express power to
19           do so, include a power to provide money, property or
20           benefits to or for an eligible recipient or for the
21           establishment of an eligible recipient.
22     (2)   Subsection (1) --
23            (a) applies despite any provision to the contrary in
24                  the trust instrument; but
25            (b) does not apply in relation to a particular eligible
26                  recipient or a particular class of eligible
27                  recipients to the extent that there is an express
28                  prohibition in the trust instrument against the
29                  provision by the trustees of money, property or
30                  benefits --
31                    (i) to or for that eligible recipient or class
32                          of eligible recipients; or


                                                                    page 3
     Charitable Trusts Amendment Bill 2010



     s. 4



 1                           (ii)   for the establishment of that eligible
 2                                  recipient or class of eligible recipients.
 3            (3)   Subsection (1) does not apply to the trustees of a
 4                  prescribed trust unless there is in force a declaration,
 5                  substantially to the effect of the form in Schedule 1, for
 6                  the prescribed trust.
 7            (4)   For the purpose of making a declaration under this
 8                  section, the form in Schedule 1 may be modified so as
 9                  to limit the application of the declaration to a stated
10                  eligible recipient or stated class of eligible recipients.
11            (5)   If the declaration made for a prescribed trust is so
12                  limited, subsection (1) in its application to the
13                  prescribed trust has effect only in relation to the stated
14                  eligible recipient or stated class of eligible recipients.
15            (6)   The trustees must ensure that the declaration, or a
16                  certified copy of it, is retained with the records of the
17                  prescribed trust.
18            (7)   The trustees are not under a duty to make a declaration
19                  under this section, nor are the trustees in breach of a
20                  duty in making a declaration under this section.

21          22D.    Ancillary provisions
22            (1)   In this section --
23                  prescribed power, in relation to a prescribed trust,
24                  means --
25                    (a) a power referred to in section 22B included in
26                           the trust instrument; or
27                    (b) the power referred to in section 22C as
28                           applying to the prescribed trust.
29            (2)   This Act applies to a prescribed trust as if the
30                  prescribed power were a power exercisable for a
31                  charitable purpose.


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                               Charitable Trusts Amendment Bill 2010



                                                                   s. 4



 1   (3)   Without limiting subsection (2) --
 2          (a) neither the existence nor the exercise of the
 3               prescribed power affects the validity or status
 4               of a charitable trust as a charitable trust; and
 5          (b) a prescribed trust is to be construed and given
 6               effect to as if --
 7                  (i) the prescribed power were a power
 8                        exercisable for a charitable purpose; and
 9                 (ii) any payment or application of the trust
10                        property or the trust income, or any part
11                        of either of them, in the way allowed by
12                        the power were to or for a charitable
13                        purpose;
14               and
15          (c) the existence or exercise of the prescribed
16               power does not affect the control of a
17               prescribed trust by the Court in the exercise of
18               the Court's general jurisdiction in relation to
19               charitable trusts; and
20          (d) the jurisdiction mentioned in paragraph (c)
21               extends to the prescribed power as if the power
22               were exercisable for a charitable purpose.
23   (4)   The provision, before the commencement day, by the
24         trustees of a prescribed trust of money, property or
25         benefits to or for an eligible recipient or for the
26         establishment of an eligible recipient --
27           (a) is taken to be, and always to have been, a
28                 provision for an authorised and valid purpose of
29                 the prescribed trust; and
30           (b) does not affect, and is taken never to have
31                 affected, the status of the prescribed trust as a
32                 charitable trust.




                                                                page 5
     Charitable Trusts Amendment Bill 2010



     s. 5



 1            (5)   Subsection (4) applies despite anything to the contrary
 2                  in the trust instrument.
 3            (6)   The inclusion of a power referred to in section 22B in
 4                  the trust instrument of a prescribed trust before the
 5                  commencement day is taken to be, and always to have
 6                  been, validly included.
 7


 8   5.       Schedule 1 inserted
 9            After section 22 insert:
10


11                  Schedule 1 -- Declaration by trustees
12                                                                            [s. 22C]
13                  The trustees of the [insert name of trust], after having regard
14                  to the effect of this declaration (including its effect on the
15                  liability of the trustees to income tax), declare that the
16                  power conferred by the Charitable Trusts Act 1962
17                  section 22C to provide money, property or benefits to or for
18                  an eligible recipient, or for the establishment of an eligible
19                  recipient, within the meaning of section 22A of that Act, is
20                  approved as a power that the trustees for the time being of
21                  the [insert name of trust] are authorised to exercise.
22                  Deed dated
23


24




 


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