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


CHARITABLE TRUSTS BILL 2022

                    Western Australia


       Charitable Trusts Bill 2022

                        Contents

      Part 1 -- Preliminary
1.    Short title                                             2
2.    Commencement                                            2
3.    Act binds Crown                                         2
4.    Terms used                                              2
      Part 2 -- Charitable recreational
           facilities
5.    Recreational facilities for charitable purposes         4
6.    General savings of law relating to charitable trusts    4
7.    Savings for Charitable Trusts Act 1962                  5
      Part 3 -- Schemes for property held
           for charitable purposes
8.    Terms used                                              6
9.    Application of Part                                     6
10.   Property disposed of for other charitable purposes      6
11.   Combining property held for same or similar
      purpose                                                 7
12.   Extension or variation of powers or specification
      or variation of mode of administration                  8
13.   Schemes for approval                                    9
14.   Submitting schemes to Attorney General                 10
15.   Attorney General's fees for considering schemes
      and preparing scheme reports                           11
16.   Applications for approval of schemes by Attorney
      General                                                11
17.   Approval of scheme by Attorney General                 12
18.   Approval of scheme by Court                            13


                           68--1                              page i
Charitable Trusts Bill 2022



Contents



      19.      Application for Court approval must be advertised      14
      20.      Opposition to application for scheme                   15
      21.      Jurisdiction of Court in respect of schemes            15
      22.      Power to make an order despite non-compliance
               with procedural requirements                           16
      23.      Administration of property through schemes             16
      24.      Expenses of scheme                                     16
      25.      Restrictions on approval of schemes                    17
      26.      Holder of property to transfer it in accordance with
               scheme                                                 17
      27.      Savings for Charitable Trusts Act 1962                 18
               Part 4 -- Investigation of charitable
                    trusts
      28.      Terms used                                             19
      29.      Western Australian Charitable Trusts Commission
               established                                            20
      30.      Functions of the Western Australian Charitable
               Trusts Commission                                      21
      31.      Complaints relating to charitable trusts or classes
               of charitable trusts                                   21
      32.      Investigation of charitable trusts                     22
      33.      Powers under Royal Commissions Act 1968                23
      34.      Western Australian Charitable Trusts
               Commission's power to carry out audits of
               charitable trust accounts                              24
      35.      Power to enter premises                                25
      36.      Consequences of disclosure of privileged
               documents or information                               25
      37.      Confidentiality                                        26
      38.      Protection from liability for complainants and
               providers                                              29
      39.      False or misleading information                        30
      40.      Failure to comply with requirement                     30
      41.      Investigator's report                                  31
      42.      Investigator's report may be published, tabled and
               provided to certain persons by Attorney General        31
      43.      Recovery of costs and expenses of investigation of
               charitable trust                                       32


page ii
                                          Charitable Trusts Bill 2022



                                                            Contents



      Part 5 -- Proceedings in relation to
           charitable trusts
44.   Proceedings to enforce or vary charitable trusts         33
45.   Proceedings relating to persons involved in
      administration of charitable trusts                      34
46.   Certain persons unfit to be involved in
      administration of charitable trusts                      35
47.   Conduct of proceedings related to charitable trusts      37
      Part 6 -- Gifts by certain trusts for
           philanthropic purposes
48.   Terms used                                               38
49.   Prescribed trust: trust instrument containing
      express power to give to eligible recipients             39
50.   Prescribed trust: trust instrument not containing
      express power to give to eligible recipients             39
51.   Ancillary provisions                                     39
52.   Validation provisions for period preceding former
      commencement day                                         40
53.   Validation and transitional provisions for period
      preceding commencement of this Part                      41
      Part 7 -- Miscellaneous
54.   Protection from liability for persons performing
      functions under Act                                      43
55.   Regulations                                              43
      Part 8 -- Repeal, savings and
           transitional provisions and
           consequential amendment
56.   Charitable Trusts Act 1962 repealed                      44
57.   Savings and transitional provisions for Charitable
      Trusts Act 1962                                          44
58.   Freedom of Information Act 1992 amended                  45
      Defined terms



                                                             page iii
                           Western Australia


                     LEGISLATIVE ASSEMBLY


               Charitable Trusts Bill 2022

                               A Bill for


An Act --
•  to affect the law relating to charitable trusts; and
•  to repeal the Charitable Trusts Act 1962; and
•  to make a consequential amendment to the Freedom of
   Information Act 1992.



The Parliament of Western Australia enacts as follows:




                                                         page 1
     Charitable Trusts Bill 2022
     Part 1          Preliminary

     s. 1



1                           Part 1 -- Preliminary
2    1.       Short title
3             This is the Charitable Trusts Act 2022.

4    2.       Commencement
5             This Act comes into operation as follows --
6              (a) Part 1 -- on the day on which this Act receives the
7                    Royal Assent;
8              (b) the rest of the Act -- on a day fixed by proclamation,
9                    and different days may be fixed for different provisions.

10   3.       Act binds Crown
11            This Act binds the Crown in right of Western Australia and, so
12            far as the legislative power of the Parliament permits, the Crown
13            in all its other capacities.

14   4.       Terms used
15            In this Act --
16            administration, of a charitable trust or property held for a
17            charitable purpose, includes management of the trust or property
18            (as the case requires);
19            approved scheme means a scheme approved under Part 3;
20            charitable purpose --
21              (a) means a purpose that is charitable under the law of this
22                    State; and
23              (b) includes a charitable purpose as defined in the Charities
24                    Act 2013 (Commonwealth) section 12;
25            charitable trust means a trust for a charitable purpose;
26            Court means the Supreme Court;
27            investigation and investigator have the meanings given in
28            section 32(1);

     page 2
                                            Charitable Trusts Bill 2022
                                            Preliminary          Part 1

                                                                   s. 4



1    involved in the administration, of a charitable trust or property
2    held for a charitable purpose, means employed, engaged or
3    otherwise concerned (including as trustee) in the administration
4    of the charitable trust or property (as the case requires);
5    property --
6      (a) means any real or personal property; and
7      (b) includes money;
8    property held for a charitable purpose means property that is
9    held on trust, or is otherwise to be applied, to a charitable
10   purpose.




                                                                page 3
     Charitable Trusts Bill 2022
     Part 2          Charitable recreational facilities

     s. 5



1               Part 2 -- Charitable recreational facilities
2    5.         Recreational facilities for charitable purposes
3         (1)   In this section --
4               recreational facilities includes facilities provided for sport or
5               leisure activities.
6         (2)   Recreational facilities are taken to be provided for a charitable
7               purpose if --
8                 (a) they are provided with the object of improving the
9                      conditions of life for the persons for whom the facilities
10                     are primarily intended (the intended users); and
11               (b) either --
12                        (i) the intended users have need of those facilities
13                             because of their youth, age, infirmity or
14                             disability, poverty or social and economic
15                             circumstances; or
16                       (ii) the facilities are to be available to members of
17                             the public or a substantial section of the public.
18        (3)   The reference in subsection (2) to the provision of recreational
19              facilities includes --
20                (a) the provision of premises for those facilities and the
21                       maintenance of grounds and buildings of those
22                       premises; and
23                (b) the organising of any activity for the purposes of those
24                       facilities.

25   6.         General savings of law relating to charitable trusts
26        (1)   Nothing in this Part detracts from the principle that a purpose
27              must be for the public benefit in order to be charitable.
28        (2)   Nothing in this Part restricts the purposes that are to be regarded
29              as charitable independently of this Part.


     page 4
                                                        Charitable Trusts Bill 2022
                                   Charitable recreational facilities        Part 2

                                                                               s. 7



1    7.         Savings for Charitable Trusts Act 1962
2         (1)   In this section --
3               commencement day means the day on which the Charitable
4               Trusts Act 1962 came into operation.
5         (2)   Nothing in this Part applies --
6                (a) to make charitable a trust existing before
7                      commencement day; or
8                (b) to validate the disposition of any property before
9                      commencement day.
10        (3)   Nothing in this Part affects any order made in legal proceedings
11              before commencement day.
12        (4)   Nothing in this Part requires anything properly done before
13              commencement day, or anything done or to be done under a
14              contract entered into before commencement day, to be treated
15              for any purpose as wrongful or ineffective.




                                                                           page 5
     Charitable Trusts Bill 2022
     Part 3          Schemes for property held for charitable purposes

     s. 8



1          Part 3 -- Schemes for property held for charitable
2                             purposes
3    8.          Terms used
4                In this Part --
5                Principal Registrar has the meaning given in the Supreme
6                Court Act 1935 section 4(1);
7                scheme report has the meaning given in section 14(3)(a).

8    9.          Application of Part
9                This Part applies to property held for a charitable purpose
10               whether or not the charitable purpose is defined by an approved
11               scheme.

12   10.         Property disposed of for other charitable purposes
13         (1)   This section applies to property held for a charitable purpose
14               (the original purpose) if --
15                 (a) it is impossible, impracticable or inexpedient to carry
16                       out the original purpose; or
17                 (b) the amount available is inadequate to carry out the
18                       original purpose; or
19                 (c) the original purpose has already been effected; or
20                 (d) the original purpose is unlawful or uncertain; or
21                 (e) the value of the property is greater than is necessary for
22                       the original purpose.
23         (2)   The property (or, in the case of subsection (1)(e), the surplus
24               property) must, in accordance with an approved scheme, be
25               applied to some other charitable purpose (an alternative
26               charitable purpose) that is as close as possible to the original
27               purpose.




     page 6
                                                          Charitable Trusts Bill 2022
                   Schemes for property held for charitable purposes           Part 3

                                                                                s. 11



1          (3)   Subsection (2) may be applied so as to restore, with or without
2                modification, the original purpose if this becomes possible.
3          (4)   In any of the circumstances referred to in subsection (1)(a)
4                to (e), the persons in whom the property is vested must, as soon
5                as reasonably practicable after becoming aware of those
6                circumstances, submit to the Attorney General for approval a
7                scheme for the application of the property to an alternative
8                charitable purpose.
9          (5)   A failure by a person in whom the property is vested to comply
10               with subsection (4) constitutes a ground for removal under
11               section 45(1)(b).
12         (6)   Nothing in the Charitable Collections Act 1946 section 16
13               prevents the application of this section.
14         (7)   This section extends to property held for a charitable purpose
15               immediately before the commencement of this section.

16   11.         Combining property held for same or similar purpose
17         (1)   This section applies to property held for a charitable purpose
18               (the original property) if --
19                 (a) the charitable purpose (the original purpose) could be
20                       more effectively carried out by combining the original
21                       property with other property held for a charitable
22                       purpose (the other property); and
23                 (b) the other property is held for a charitable purpose that is
24                       the same as, or similar to, the original purpose.
25         (2)   The original property may be combined, and jointly
26               administered and applied, with the other property in accordance
27               with an approved scheme.
28         (3)   This section extends to property held for a charitable purpose
29               immediately before the commencement of this section.




                                                                             page 7
     Charitable Trusts Bill 2022
     Part 3          Schemes for property held for charitable purposes

     s. 12



1    12.         Extension or variation of powers or specification or
2                variation of mode of administration
3          (1)   This section applies to property held for a charitable purpose if
4                the administration of the property could be facilitated by --
5                  (a) extending or varying the powers of the persons in whom
6                       the property is vested; or
7                  (b) specifying or varying the mode of administering the
8                       property.
9          (2)   The application of this section extends to the extension or
10               variation of the powers of the persons in whom the property is
11               vested, and to the specification or variation of a mode of
12               administering the property, in relation to --
13                 (a) an invalid accumulation clause; and
14                 (b) an accumulation clause that will become invalid at the
15                       conclusion of the perpetuity period.
16         (3)   In accordance with an approved scheme, the powers of the
17               persons in whom the property is vested may be extended or
18               varied, and the mode of administering the property may be
19               specified or varied, if the extension, variation or specification is
20               consistent with the charitable purpose to which the property is
21               to be applied.
22         (4)   If an action referred to in subsection (1)(a) or (b) becomes
23               necessary for the administration of the property, the persons in
24               whom the property is vested must, as soon as reasonably
25               practicable after the action becomes necessary, submit to the
26               Attorney General for approval a scheme that effects the action.
27         (5)   A failure by a person in whom the property is vested to comply
28               with subsection (4) constitutes a ground for removal under
29               section 45(1)(b).




     page 8
                                                          Charitable Trusts Bill 2022
                   Schemes for property held for charitable purposes           Part 3

                                                                                s. 13



1          (6)   Nothing in this section restricts the powers that are or may be
2                conferred by or under any law of the State on the Court or the
3                persons in whom the property is vested.
4          (7)   This section extends to property held for a charitable purpose
5                immediately before the commencement of this section.

6    13.         Schemes for approval
7          (1)   Persons in whom property held for a charitable purpose is
8                vested must prepare, and submit to the Attorney General, a
9                scheme if they want the property to be dealt with in accordance
10               with an approved scheme.
11         (2)   The scheme must relate to --
12                (a) if section 10 applies -- the application of the property
13                      for an alternative charitable purpose as defined in
14                      section 10(2); or
15                (b) if section 11 applies -- the combination and joint
16                      administration and application of the property referred
17                      to in that section; or
18                (c) if section 12 applies --
19                         (i) the extension or variation of the powers of the
20                              persons in whom the property is vested; or
21                        (ii) the specification or variation of the mode of
22                              administering the property.
23         (3)   If section 11 applies, the persons in whom the property to be
24               combined is vested must jointly prepare, and seek approval for,
25               the scheme.
26         (4)   If the consideration by the Court or the Attorney General (as the
27               case requires) of 2 or more schemes will involve consideration
28               of substantially similar issues, the persons in whom the property
29               is vested may jointly prepare, and seek approval for, the
30               schemes.



                                                                             page 9
     Charitable Trusts Bill 2022
     Part 3          Schemes for property held for charitable purposes

     s. 14



1    14.         Submitting schemes to Attorney General
2          (1)   A scheme submitted to the Attorney General must be
3                accompanied by --
4                  (a) full details of all the facts in light of which it is proposed
5                      to apply property under the scheme; and
6                  (b) copies of any instruments necessary to understand the
7                      scheme.
8          (2)   The Attorney General may remit the scheme to the persons in
9                whom the property is vested for consideration of any
10               amendments suggested by the Attorney General.
11         (3)   Except as provided in subsection (5), the Attorney General
12               must --
13                (a) prepare a report (a scheme report) in writing on the
14                      scheme as submitted by the persons in whom the
15                      property is vested after those persons have considered
16                      any amendments suggested by the Attorney General;
17                      and
18                (b) give a copy of the scheme report to the persons in whom
19                      the property is vested.
20         (4)   A scheme report must address the matters referred to in
21               section 25(1).
22         (5)   The Attorney General is not required to prepare a scheme report
23               if the Attorney General --
24                  (a) approves the scheme under section 16(6)(a); and
25                 (b) considers that a scheme report is unnecessary in the
26                       circumstances.
27         (6)   The Attorney General must make the scheme and scheme report
28               available for inspection by the public free of charge.




     page 10
                                                          Charitable Trusts Bill 2022
                   Schemes for property held for charitable purposes           Part 3

                                                                                s. 15



1    15.         Attorney General's fees for considering schemes and
2                preparing scheme reports
3          (1)   The Attorney General may charge persons submitting a scheme
4                under section 14 reasonable fees for the costs and expenses
5                (including legal costs) incurred by the Attorney General in
6                considering the scheme and preparing a scheme report.
7          (2)   The Attorney General's legal costs must be charged in
8                accordance with --
9                  (a) a legal costs determination made for the purposes of this
10                      section under the Legal Profession Act 2008
11                      section 275(5); or
12                 (b) if paragraph (a) does not apply, in accordance with a
13                      legal costs determination in respect of contentious
14                      business before the Court made under the Legal
15                      Profession Act 2008 section 275(1)(b)(i).
16         (3)   For the purposes of subsection (2), a reference in the Legal
17               Profession Act 2008 section 275 to a law practice includes a
18               reference to any person providing legal services to the Attorney
19               General in considering the scheme and preparing a scheme
20               report.

21   16.         Applications for approval of schemes by Attorney General
22         (1)   This section applies in relation to a scheme if --
23                (a) the value of the property to which the scheme relates is
24                      less than $100 000, or any greater amount prescribed for
25                      the purposes of this paragraph; or
26                (b) income in the previous financial year from the property
27                      to which the scheme applies was less than $20 000, or
28                      any greater amount prescribed for the purposes of this
29                      paragraph.




                                                                            page 11
     Charitable Trusts Bill 2022
     Part 3          Schemes for property held for charitable purposes

     s. 17



1          (2)   For the purposes of subsection (1)(a), the value of the property
2                must be determined without regard to any limits on use imposed
3                by a charitable purpose to which the property is to be applied.
4          (3)   In relation to a scheme jointly prepared under section 13(3)
5                or (4), this section applies only if subsection (1) applies to each
6                of the sets of property to be combined for the purposes of the
7                scheme.
8          (4)   The persons in whom the property is vested may apply to the
9                Attorney General for approval of the scheme.
10         (5)   The application must be made in writing.
11         (6)   After receiving the application, the Attorney General must, in
12               accordance with section 25(1) --
13                 (a) approve the scheme as submitted by the persons in
14                       whom the property is vested after those persons have
15                       considered any amendments suggested by the Attorney
16                       General under section 14(2); or
17                 (b) refuse to approve the scheme.
18         (7)   Before making a decision under subsection (6), the Attorney
19               General --
20                (a) may require the persons in whom the property is vested
21                      to give public notice of the scheme in any manner the
22                      Attorney General thinks fit; and
23                (b) must have regard to any representations made to the
24                      Attorney General by any person considered by the
25                      Attorney General to have an interest in the matter.

26   17.         Approval of scheme by Attorney General
27         (1)   If the Attorney General approves a scheme, the Attorney
28               General must give to the persons in whom the property is
29               vested --
30                 (a) a written notice of the approval (an approval notice);
31                       and

     page 12
                                                          Charitable Trusts Bill 2022
                   Schemes for property held for charitable purposes           Part 3

                                                                                 s. 18



1                 (b)    if the Attorney General has prepared a scheme report in
2                        relation to the scheme -- a copy of the report together
3                        with the approval notice.
4          (2)   The persons in whom the property is vested must ensure that the
5                approval notice is published in the Gazette within 28 days after
6                the notice is received by the persons.
7          (3)   A failure by a person in whom the property is vested to comply
8                with subsection (2) constitutes a ground for removal under
9                section 45(1)(b).
10         (4)   The approval of a scheme by the Attorney General takes effect
11               at the time it is granted or a later time specified in the approval
12               notice.
13         (5)   The Attorney General may approve a scheme despite
14               non-compliance with the procedural requirements of this Part in
15               relation to the scheme.
16         (6)   If the Attorney General refuses to approve the scheme --
17                 (a) the Attorney General must set out the reasons for that
18                       decision in a scheme report; and
19                 (b) the persons in whom the property is vested may apply to
20                       the Court under section 18(1) for approval of the
21                       scheme.

22   18.         Approval of scheme by Court
23         (1)   The persons in whom the property is vested may, at any time
24               after receipt of a scheme report relating to a scheme submitted
25               by them to the Attorney General, apply to the Court for
26               approval of the scheme.
27         (2)   The application must be accompanied by a copy of the scheme
28               and the scheme report.




                                                                             page 13
     Charitable Trusts Bill 2022
     Part 3          Schemes for property held for charitable purposes

     s. 19



1          (3)   The Court must make the application, scheme and scheme
2                report available for inspection by the public free of charge.
3          (4)   The persons in whom the property is vested must ensure that
4                notice, in a form approved by the Principal Registrar, of the
5                Court's approval of the scheme or refusal to approve the scheme
6                is published in the Gazette within 28 days after the order
7                approving or refusing to approve the scheme is made under
8                section 21(4).
9          (5)   A failure by a person in whom the property is vested to comply
10               with subsection (4) constitutes a ground for removal under
11               section 45(1)(b).

12   19.         Application for Court approval must be advertised
13         (1)   The Court must not consider an application under section 18(1)
14               unless the persons in whom the property is vested give notice of
15               the application in accordance with subsection (2).
16         (2)   Notice must be given within a period that is not more than
17               3 months and not less than 1 month before the date proposed for
18               the consideration of the application --
19                 (a) to the public or a person or class of persons having an
20                      interest in the application of the property, as directed by
21                      the Court; and
22                 (b) in a manner approved by the Court.
23         (3)   The notice must --
24                (a) give a brief summary of the scheme; and
25                (b) state the date proposed for the hearing of the application
26                      by the Court; and
27                (c) require any person wanting to oppose the scheme to give
28                      written notice of their intention to do so to the Principal
29                      Registrar, the persons in whom the property is vested
30                      and the Attorney General not less than 7 days before the
31                      date proposed for the hearing of the application.


     page 14
                                                          Charitable Trusts Bill 2022
                   Schemes for property held for charitable purposes           Part 3

                                                                                s. 20



1    20.         Opposition to application for scheme
2          (1)   A person wanting to oppose an application under section 18(1)
3                must give notice of the person's intention to oppose the
4                application to the following --
5                  (a) the Principal Registrar;
6                  (b) the persons in whom the property is vested;
7                  (c) the Attorney General.
8          (2)   The notice must be given in writing not less than 7 days before
9                the proposed hearing of the application.

10   21.         Jurisdiction of Court in respect of schemes
11         (1)   This section applies if an application for approval of a scheme is
12               made to the Court under section 18(1).
13         (2)   The Court may decide which persons are to be heard before it in
14               support of, or in opposition to, the scheme.
15         (3)   The Court has jurisdiction and authority to hear and determine
16               all matters relating to the scheme.
17         (4)   Subject to section 25, the Court may, as it thinks fit, make an
18               order --
19                 (a) approving the scheme with or without modification; or
20                 (b) refusing to approve the scheme.
21         (5)   The Court may make any order it thinks fit if --
22                (a) a scheme is approved under subsection (4)(a); and
23                (b) the persons in whom the property is vested make a
24                     further application for the Court to approve variations to
25                     the scheme.




                                                                            page 15
     Charitable Trusts Bill 2022
     Part 3          Schemes for property held for charitable purposes

     s. 22



1    22.         Power to make an order despite non-compliance with
2                procedural requirements
3                The Court may, if it thinks fit, make an order under this Part in
4                relation to a scheme despite non-compliance with the procedural
5                requirements of this Part in relation to the scheme.

6    23.         Administration of property through schemes
7          (1)   An approved scheme may provide that the purposes of the
8                scheme may, in whole or in part, be carried out, and that any
9                property to which the scheme relates may be administered, by
10               any of the following --
11                 (a) the trustees of any existing charitable trust;
12                 (b) a health service provider as defined in the Health
13                       Services Act 2016 section 6;
14                 (c) the Public Trustee or any trustees who could be
15                       appointed under the Trustees Act 1962.
16         (2)   Nothing in this section limits a scheme in making any other
17               provision for carrying out the purposes of the scheme under this
18               Part or for administering any property to which the scheme
19               relates.

20   24.         Expenses of scheme
21         (1)   In this section --
22               expenses, of a scheme, means the reasonable expenses of --
23                 (a) preparing and advertising the scheme; and
24                 (b) obtaining approval for the scheme (including any fees
25                        payable under section 15(1)).
26         (2)   A scheme prepared and approved under this Part may provide
27               that the expenses of the scheme must be paid out of, and be a
28               charge on, the property to which the scheme relates.




     page 16
                                                          Charitable Trusts Bill 2022
                   Schemes for property held for charitable purposes           Part 3

                                                                                s. 25



1          (3)   If a scheme was jointly prepared under section 13(3) or (4), the
2                scheme may specify how the expenses of the scheme are to be
3                apportioned.

4    25.         Restrictions on approval of schemes
5          (1)   The Court or the Attorney General must not approve a scheme
6                under this Part unless satisfied of all of the following --
7                  (a) that the scheme is appropriate to carry out each
8                        proposed purpose and is not contrary to the law of this
9                        State or generally accepted standards of decency and
10                       propriety;
11                (b) that the scheme can be approved under this Part;
12                 (c) that each proposed purpose under the scheme is a
13                       charitable purpose that can be carried out;
14                (d) except as provided in sections 17(5) and 22, that the
15                       requirements of this Part have been complied with in
16                       relation to the scheme.
17         (2)   A refusal of the Court or the Attorney General to approve a
18               scheme under this Part does not prevent fresh steps from being
19               taken under this Part to obtain the approval of any other scheme
20               in respect of the same property.

21   26.         Holder of property to transfer it in accordance with scheme
22         (1)   This section applies if a scheme approved by the Court or the
23               Attorney General under this Part designates a person or body to
24               hold or receive property under the scheme.
25         (2)   The persons in whom that property is vested must transfer that
26               property to that person or body.
27         (3)   When property is transferred under subsection (2), the persons
28               in whom the property was previously vested are no longer liable
29               in respect of any express or implied trust upon which they held
30               the property.


                                                                            page 17
    Charitable Trusts Bill 2022
    Part 3          Schemes for property held for charitable purposes

    s. 27



1         (4)   Subsection (3) does not remove the liability of the persons in
2               whom the property was previously vested for any default or
3               misappropriation of the property.

4   27.         Savings for Charitable Trusts Act 1962
5               A scheme approved under the Charitable Trusts Act 1962
6               Part III is taken to be an approved scheme.




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1          Part 4 -- Investigation of charitable trusts
2    28.   Terms used
3          In this Part --
4          authorised person means a person who is --
5            (a) 1 or more of the following --
6                      (i) a legal practitioner;
7                     (ii) an accountant;
8                    (iii) a person employed or engaged by the department
9                           principally assisting the Attorney General in the
10                          administration of this Act;
11                   (iv) a person of a prescribed class;
12                  and
13           (b) authorised by the Attorney General to conduct, or assist
14                  in, an investigation;
15         complaint and complainant have the meanings given in
16         section 31(1);
17         investigator's report has the meaning given in section 41(1);
18         provider means a person who provides a document or
19         information relating to a charitable trust to the Attorney General
20         (directly or via an authorised person) or the Western Australian
21         Charitable Trusts Commission --
22           (a) in response to a requirement; or
23           (b) voluntarily;
24         requirement has the meaning given in section 32(2);
25         Western Australian Charitable Trusts Commission means the
26         commission established under section 29(1).




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1    29.         Western Australian Charitable Trusts Commission
2                established
3          (1)   The Western Australian Charitable Trusts Commission is
4                established.
5          (2)   The Western Australian Charitable Trusts Commission is
6                constituted by --
7                  (a) unless paragraph (b) or (c) applies, the Commissioner
8                        appointed under the Parliamentary Commissioner
9                        Act 1971 section 5(1); or
10                 (b) in the circumstances referred to in the Parliamentary
11                       Commissioner Act 1971 section 6A(2) -- the Deputy
12                       Commissioner appointed under section 5(1a) of that
13                       Act; or
14                 (c) in the circumstances referred to in the Parliamentary
15                       Commissioner Act 1971 section 7(2) -- the Acting
16                       Commissioner appointed under section 7(1) of that Act.
17         (3)   The Deputy Commissioner appointed under the Parliamentary
18               Commissioner Act 1971 section 5(1a) has the duties that the
19               Western Australian Charitable Trusts Commission directs.
20         (4)   The Parliamentary Commissioner Act 1971 sections 9, 10, 11
21               and 20(1) apply to the Western Australian Charitable Trusts
22               Commission as if --
23                 (a) references in those sections --
24                        (i) to the Commissioner were to the Western
25                             Australian Charitable Trusts Commission; and
26                       (ii) to "this Act" were to the Charitable Trusts
27                             Act 2022;
28                      and
29                 (b) in section 10, references to the Deputy Commissioner
30                      and the Acting Commissioner were omitted; and




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1                  (c)   in section 11(1) the words "In so far as he is authorised
2                        so to do by Rules of Parliament made under this Act, or
3                        a resolution of both Houses of Parliament" were
4                        omitted.

5    30.         Functions of the Western Australian Charitable Trusts
6                Commission
7                The Western Australian Charitable Trusts Commission has the
8                following functions --
9                  (a) to conduct investigations, including audits of the
10                      accounts of charitable trusts under investigation;
11                 (b) to make an investigator's report on each investigation;
12                 (c) to make recommendations to the trustees of charitable
13                      trusts in respect of matters arising out of investigations.

14   31.         Complaints relating to charitable trusts or classes of
15               charitable trusts
16         (1)   A person (the complainant) may make a complaint (the
17               complaint) to the Attorney General or Western Australian
18               Charitable Trusts Commission about a charitable trust or a class
19               of charitable trusts.
20         (2)   The complaint must be made in a manner approved by the
21               Attorney General or Western Australian Charitable Trusts
22               Commission (as the case requires).
23         (3)   This section extends to --
24                (a) trusts created before the commencement of this section;
25                      and
26                (b) acts done and omissions made before the
27                      commencement of this section in relation to those trusts.




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1    32.         Investigation of charitable trusts
2          (1)   An investigation of a charitable trust or class of charitable trusts
3                (an investigation) may be carried out by the following
4                (an investigator) --
5                  (a) an authorised person acting at the direction of the
6                        Attorney General --
7                          (i) on a complaint to the Attorney General; or
8                         (ii) on the Attorney General's own initiative;
9                  (b) the Western Australian Charitable Trusts
10                       Commission --
11                         (i) on a complaint to the Western Australian
12                               Charitable Trusts Commission; or
13                        (ii) on referral by the Attorney General.
14         (2)   An investigator may, in the performance of a function under this
15               Act, give to a person a written notice (a requirement) requiring
16               the person to provide to the investigator --
17                 (a) a document or other information --
18                         (i) relating to a charitable trust; or
19                        (ii) concerning any person involved in the
20                               administration of a charitable trust;
21                       or
22                 (b) any other assistance that is reasonably necessary.
23         (3)   An investigator may refuse to investigate a complaint or, having
24               commenced to investigate a complaint, may refuse to continue
25               the investigation, if the investigator is of the opinion that --
26                 (a) the matter raised in the complaint is trivial; or
27                 (b) the complaint is frivolous or vexatious or is not made in
28                       good faith; or




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1                 (c)   the complainant has provided insufficient information;
2                       or
3                 (d)   another person or body has investigated, is investigating
4                       or is about to investigate the charitable trust or a trustee
5                       of the charitable trust to which the complaint relates; or
6                 (e)   having regard to all the circumstances of the case, the
7                       investigation, or the continuance of the investigation of
8                       the matter raised in the complaint, is unnecessary or
9                       unjustifiable.
10         (4)   If an investigator refuses to investigate a complaint, or refuses
11               to continue an investigation, the investigator, by notice in
12               writing --
13                 (a) must inform the complainant of the investigator's
14                       decision; and
15                 (b) may, if the investigator considers it appropriate, provide
16                       reasons for the decision.
17         (5)   The Western Australian Charitable Trusts Commission may
18               regulate its procedure in relation to an investigation in any
19               manner it thinks fit.

20   33.         Powers under Royal Commissions Act 1968
21         (1)   An investigator has all the powers, rights and privileges that are
22               specified in the Royal Commissions Act 1968 as they relate to a
23               Royal Commission and the Chairman of the Royal Commission.
24         (2)   For the purposes of subsection (1), the provisions of the Royal
25               Commissions Act 1968 have effect as if they were enacted in
26               this Act and in terms made applicable to the investigator and
27               that matter as if the matter were one into which a Royal
28               Commission was appointed to inquire under that Act.




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1          (3)   This section applies despite any obligation imposed by an
2                enactment or rule of law to maintain secrecy or impose any
3                other restriction in relation to information obtained by, or
4                furnished to, an investigator.
5          (4)   A provider is not entitled to any privilege in respect of the
6                production of documents or the giving of evidence as is allowed
7                by law in legal proceedings.
8          (5)   Subject to subsections (3) and (4), a person is not compelled for
9                the purposes of an investigation to give any evidence or produce
10               any document that the person could not be compelled to give or
11               produce in proceedings before a court.

12   34.         Western Australian Charitable Trusts Commission's power
13               to carry out audits of charitable trust accounts
14         (1)   The Western Australian Charitable Trusts Commission may, as
15               part of an investigation, carry out an audit of the accounts of a
16               charitable trust under investigation.
17         (2)   The Western Australian Charitable Trusts Commission may, in
18               writing, appoint, or direct the trustees of the charitable trust to
19               arrange, an appropriately qualified person (an auditor), whether
20               corporate or unincorporate, to carry out all or a part of the audit.
21         (3)   In the case of an appointment by the Western Australian
22               Charitable Trusts Commission, the auditor may be a public
23               service officer.
24         (4)   If an auditor, however appointed or arranged, is not a public
25               service officer, any fee payable to the auditor must be fixed by
26               the Western Australian Charitable Trusts Commission.
27         (5)   An auditor must report on completion of the audit to the
28               Western Australian Charitable Trusts Commission.




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1          (6)   The reference in section 32(1)(b) to the Western Australian
2                Charitable Trusts Commission includes an auditor carrying out
3                an audit.

4    35.         Power to enter premises
5                For the purposes of conducting an investigation, an investigator
6                may, at any reasonable time --
7                 (a) enter any premises occupied or used by a person to
8                        whom a requirement has been given; and
9                 (b) inspect those premises or anything on those premises.

10   36.         Consequences of disclosure of privileged documents or
11               information
12         (1)   This section applies if a provider discloses to an investigator a
13               document or information (the privileged document or
14               information) subject to privilege against self-incrimination or
15               legal professional privilege.
16         (2)   In the case of legal professional privilege --
17                 (a) the privilege relating to a trustee is abrogated only to the
18                       extent that the privileged document or information
19                       relates to the administration of the trust; and
20                 (b) the disclosure does not otherwise constitute a waiver of
21                       legal professional privilege.
22         (3)   The privilege is not abrogated in relation to the disclosure of the
23               privileged document or information to a person other than the
24               investigator.
25         (4)   Subsection (3) does not apply if --
26                (a) the investigator is the Western Australian Charitable
27                      Trusts Commission or an authorised person, and the
28                      disclosure is made to the Attorney General; or




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1                 (b)    the disclosure is with the consent of the person who
2                        benefits from the privilege; or
3                  (c)   the disclosure is for the purposes of proceedings for an
4                        offence under section 39 or 40(2); or
5                 (d)    the disclosure is for the purposes of civil proceedings,
6                        whether under this Act, the Trustees Act 1962 or the
7                        inherent jurisdiction of the Court, for directions in
8                        respect of the charitable trust --
9                           (i) to remove the trustee; or
10                         (ii) otherwise in respect of a breach of trust.
11         (5)   A privileged document or information provided in compliance
12               with a requirement is not admissible in evidence against the
13               person in proceedings other than proceedings referred to in
14               subsection (4)(c) or (d).

15   37.         Confidentiality
16         (1)   Other than as is necessary for the administration of this Act,
17               nothing in this Part authorises access to, or the disclosure of, a
18               document or information provided to an investigator by a
19               provider.
20         (2)   The following persons are subject to a duty of confidentiality --
21                (a) people who are or were engaged or employed to perform
22                       a function under this Part;
23                (b) any other people --
24                         (i) to whom a document or information is disclosed
25                               under this Part; or
26                        (ii) who gain access (properly or improperly) to a
27                               document or information obtained under this
28                               Part.




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1    (3)   A person subject to a duty of confidentiality must not record,
2          make use of or disclose a document or information provided by
3          a provider except --
4            (a) with the consent of the provider; or
5            (b) for the purpose of enabling or assisting the Western
6                  Australian Charitable Trusts Commission or Attorney
7                  General to perform or exercise any functions or powers
8                  under this Act or another law relating to charitable
9                  trusts, including disclosing it --
10                    (i) to a trustee of, or a person with an advisory role
11                          in relation to, a relevant charitable trust; or
12                   (ii) to a person or class of persons, or a person or
13                          body representing a person or class of persons,
14                          intended to benefit from the application of trust
15                          funds from the relevant charitable trust;
16                 or
17           (c) for the purpose of obtaining or providing legal advice;
18                 or
19           (d) for the purpose of legal proceedings relating to the
20                 relevant charitable trust instituted by the Attorney
21                 General or to which the Attorney General is or may
22                 become a party, including --
23                    (i) for representation in legal proceedings; and
24                   (ii) to a witness or potential witness in the
25                          proceedings;
26                 or
27           (e) in accordance with an order of the Court on application
28                 by the Attorney General; or
29            (f) as permitted or required under this Act or another
30                 written law; or




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1                (g)  for the purposes of notifying, or referring a matter to --
2                        (i) the Commissioner of Police; or
3                       (ii) the Australian Securities and Investments
4                              Commission established under the Australian
5                              Securities and Investments Commission Act 2001
6                              (Commonwealth); or
7                      (iii) the Advisory Committee established under the
8                              Charitable Collections Act 1946 section 10; or
9                      (iv) the Commissioner of the Australian Charities and
10                             Not-for-profits Commission established under
11                             the Australian Charities and Not-for-profits
12                             Commission Act 2012 (Commonwealth)
13                             section 110-5; or
14                      (v) the Office of the Registrar of Aboriginal and
15                             Torres Strait Islander Corporations established
16                             under the Corporations (Aboriginal and Torres
17                             Strait Islander) Act 2006 (Commonwealth)
18                             section 1-30; or
19                     (vi) the Commissioner of Taxation holding office
20                             under the Taxation Administration Act 1953
21                             (Commonwealth); or
22                    (vii) the Commissioner of State Revenue;
23                    or
24              (h) if disclosing it to a person or class of persons prescribed
25                    by the regulations.
26             Penalty for this subsection: a fine of $50 000.
27      (4)    A person to whom a document or information is disclosed under
28             subsection (3)(g) may record, make use of or disclose the
29             document or information in the performance of functions under
30             any written law or other law, consistent with (or in connection
31             with) the purpose for which the document or information was
32             disclosed.



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1          (5)   Without limiting subsection (4), a person to whom a document
2                or information is disclosed under subsection (3)(g) may record,
3                make use of or disclose the document or information to, or for
4                the use of, any entity, court or tribunal in criminal, civil or
5                administrative proceedings that are related to the original
6                purpose for which the document or information was provided.

7    38.         Protection from liability for complainants and providers
8          (1)   This section applies if a person, in good faith --
9                 (a) makes a complaint; or
10                (b) provides a document, information or assistance to an
11                      investigator in relation to a charitable trust or class of
12                      charitable trusts, whether in response to a requirement or
13                      voluntarily.
14         (2)   In making the complaint or providing the document,
15               information or assistance, the person --
16                 (a) does not incur any civil or criminal liability; and
17                 (b) is not to be regarded as having breached any duty of
18                      confidentiality or secrecy imposed by law; and
19                 (c) is not to be regarded as having --
20                         (i) breached any professional ethics or standards or
21                              any principles of conduct applicable to the
22                              person's employment; or
23                        (ii) engaged in unprofessional conduct;
24                      and
25                 (d) is not liable --
26                         (i) to any disciplinary action under a written law; or
27                        (ii) to be dismissed from any office or to have the
28                              person's employment terminated; or
29                       (iii) to have the person's services dispensed with or
30                              otherwise terminated.



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1    39.         False or misleading information
2                A provider must not provide to an investigator a document or
3                information that the provider knows to be false or misleading in
4                a material particular.
5                Penalty: a fine of $50 000.

6    40.         Failure to comply with requirement
7          (1)   In this section --
8                specified period, in relation to a requirement, means --
9                  (a) 14 days; or
10                 (b) any other period specified by the investigator in the
11                        requirement or otherwise in writing.
12         (2)   A person who is given a requirement commits an offence if the
13               person fails to comply with the requirement within the specified
14               period after it is given.
15               Penalty for this subsection: a fine of $50 000.
16         (3)   It is a defence to a charge under subsection (2) to prove that --
17                  (a) the person had a reasonable excuse for not complying
18                        with the requirement; and
19                 (b) the person objected to the requirement in accordance
20                        with subsection (4).
21         (4)   A person who is given a requirement may, within the specified
22               period after the requirement is given, object to complying with
23               the requirement by lodging with the investigator a notice in
24               writing specifying a reasonable excuse for not complying with
25               the requirement.
26         (5)   For the purposes of subsections (3) and (4), it is not a reasonable
27               excuse to assert --
28                 (a) privilege against self-incrimination; or
29                 (b) if the person is a trustee of the relevant charitable
30                       trust -- legal professional privilege.

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1    41.         Investigator's report
2          (1)   An investigator must prepare a report on the investigation (an
3                investigator's report).
4          (2)   An investigator must give a copy of the investigator's report to
5                the Attorney General.
6          (3)   An investigator's report may be accompanied by notice in
7                writing directing that a relevant trustee must, within a period
8                specified in the notice, take reasonably necessary action
9                specified in the notice in response to the findings in the report.
10         (4)   If the investigator's report is accompanied by the notice, the
11               investigator must give a copy of the notice to the relevant
12               trustee.
13         (5)   If a relevant trustee fails to comply with the notice, the
14               investigator must prepare an amended or further investigator's
15               report.
16         (6)   A failure by a trustee to comply with the notice constitutes a
17               ground for removal of the trustee under section 45(1)(b)(i).

18   42.         Investigator's report may be published, tabled and provided
19               to certain persons by Attorney General
20               On receiving an investigator's report, the Attorney General
21               may, if the Attorney General considers the report to be final, do
22               any of the following --
23                 (a) cause a copy of the report, in whole or in part, to be laid
24                       before each House of Parliament;
25                 (b) provide a copy of the report, in whole or in part, to the
26                       following --
27                          (i) a complainant;
28                         (ii) a trustee;
29                        (iii) a person referred to in section 37(3)(g) or (h).



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1    43.         Recovery of costs and expenses of investigation of charitable
2                trust
3          (1)   In this section --
4                costs and expenses, of an investigation (including any audit of
5                the accounts of a charitable trust under the investigation), means
6                the costs and expenses of an investigator in conducting the
7                investigation.
8          (2)   The Attorney General may apply to the Court to recover the
9                costs and expenses of an investigation.
10         (3)   On an application under subsection (2), the Court may make
11               orders for the payment of the whole or part of the costs and
12               expenses of the investigation --
13                 (a) out of the property of the relevant charitable trust; or
14                 (b) by a trustee of the relevant charitable trust; or
15                 (c) if the investigation was the result of a complaint and the
16                       Court finds that the complaint was frivolous or
17                       vexatious or was not made in good faith -- by the
18                       complainant.




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1     Part 5 -- Proceedings in relation to charitable trusts
2    44.         Proceedings to enforce or vary charitable trusts
3          (1)   This section applies in relation to property held by a charitable
4                trust whether or not a scheme in respect of the property has been
5                approved under Part 3.
6          (2)   A person may apply to the Court for 1 or more of the
7                following --
8                  (a) an order requiring a trustee of a charitable trust to carry
9                       out the trusts on which the property is held, and to
10                      comply with the provisions of an approved scheme (if
11                      any) relating to the property;
12                 (b) an order requiring a trustee of a charitable trust to meet
13                      the trustee's liability for any breach of trust affecting the
14                      property, as the Court may direct;
15                 (c) an order requiring a trustee of a charitable trust to
16                      provide a document or information to a person or class
17                      of persons, or a person or body representing a person or
18                      class of persons, intended to benefit from the application
19                      of trust funds from the charitable trust;
20                 (d) an order giving directions in respect of --
21                         (i) the administration of a charitable trust; or
22                        (ii) any investigation in relation to a charitable trust;
23                              or
24                       (iii) any assistance required of a person under
25                              section 32(2)(b);
26                 (e) an order requiring an audit of the accounts of a
27                      charitable trust;
28                  (f) an order directing that on and after the date of the order,
29                      or any subsequent date specified in the order, the
30                      property must not be applied except in accordance with
31                      an approved scheme;


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1                 (g)    an order directing that a person holding the property
2                        must not dispose of it without the approval of the Court,
3                        the Attorney General or some other person;
4                 (h)    an order restricting the transactions that may be entered
5                        into or the nature or amount of the payments that may be
6                        made, in the administration of a charitable trust, without
7                        the approval of the Court, the Attorney General or some
8                        other person;
9                  (i)   any other order that is necessary or convenient to be
10                       made for giving effect to an order referred to in any of
11                       paragraphs (a) to (h).
12         (3)   Copies of the application must be served on the trustees of a
13               charitable trust to which the application relates.
14         (4)   The Court may decide which persons are to be heard in relation
15               to the application.
16         (5)   After receiving the application, the Court may make any order
17               under subsection (2) it thinks fit.

18   45.         Proceedings relating to persons involved in administration
19               of charitable trusts
20         (1)   The Attorney General or a person authorised by the Attorney
21               General may, in accordance with subsection (2), apply to the
22               Court for 1 or more of the following --
23                (a) an order precluding the involvement of a person in the
24                      administration of a charitable trust;
25                (b) an order removing --
26                         (i) all or any trustees of a charitable trust; or
27                        (ii) any other person involved in the administration
28                              of a charitable trust;
29                (c) an order appointing a person as a trustee of a charitable
30                      trust;



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1                 (d)    any other order that is necessary or convenient to be
2                        made for giving effect to an order referred to in any of
3                        paragraphs (a) to (c).
4          (2)   The application may be made on 1 or more of the following
5                grounds --
6                  (a) that there has been misconduct or mismanagement in
7                       relation to the administration of a charitable trust;
8                  (b) that it is necessary or desirable to act for the purpose of
9                       protecting existing or future property held by a
10                      charitable trust;
11                 (c) that a person is not a fit and proper person to be
12                      involved in the administration of a charitable trust;
13                 (d) in the case of an order under subsection (1)(b), that a
14                      person has failed to comply with a provision of this Act
15                      and that failure is specified by this Act to constitute a
16                      ground for removal under that subsection.
17         (3)   After receiving the application, the Court may make any order
18               under subsection (1) it thinks fit.
19         (4)   A person must not fail to comply with an order under
20               subsection (3).
21               Penalty for this subsection: imprisonment for 1 year and a fine
22                   of $50 000.

23   46.         Certain persons unfit to be involved in administration of
24               charitable trusts
25         (1)   Except as provided in subsection (2), a person must not be
26               involved in the administration of a charitable trust if the person
27               is any of the following --
28                 (a) a person who is an insolvent under administration as
29                       defined in the Corporations Act 2001 (Commonwealth)
30                       section 9;



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1                (b)   a person who is the director of a corporation that is
2                      insolvent or under administration as those terms are
3                      defined in the Corporations Act 2001 (Commonwealth)
4                      section 9;
5                (c) a person who was the director of a corporation at the
6                      time it became insolvent or went into administration as
7                      those terms are defined in the Corporations Act 2001
8                      (Commonwealth) section 9;
9               (d) a person who is disqualified by or under a written law or
10                     a law of another State, a Territory or the Commonwealth
11                     from being employed, engaged or otherwise involved in
12                     the management of a body corporate or other entity
13                     registered under the Australian Charities and
14                     Not-for-profits Commission Act 2012 (Commonwealth);
15               (e) a person --
16                        (i) in relation to whom an order has been made
17                             under section 45(1)(a) or (b); or
18                       (ii) who has been otherwise removed as trustee of a
19                             charitable trust by order of the Court;
20               (f) a person who has been convicted of an offence
21                     involving fraud or dishonesty;
22              (g) a body corporate of which an individual referred to in
23                     any of paragraphs (a) to (f) is a director.
24             Penalty for this subsection: imprisonment for 1 year and a fine
25                  of $50 000.
26      (2)    Subsection (1) applies to a person in respect of a charitable trust
27             unless the Court grants leave under subsection (5) for the person
28             to be involved in the administration of a charitable trust.
29      (3)    A person to whom subsection (1) applies may apply to the Court
30             for leave to be involved in the administration of a charitable
31             trust.




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1          (4)   The Attorney General is a party to the application.
2          (5)   On receipt of the application the Court may, subject to any
3                conditions the Court considers appropriate, grant the leave if it
4                considers there are exceptional circumstances warranting the
5                granting of the leave.
6          (6)   A person to whom subsection (1) applies who has not been
7                granted leave under subsection (5) (a person who is unfit) --
8                  (a) cannot be appointed as a trustee of a charitable trust; and
9                  (b) if the person is a trustee of a charitable trust when the
10                      person becomes unfit -- is, by force of this section,
11                      removed as trustee on the later of --
12                         (i) 30 days after the person becomes unfit; or
13                        (ii) if the person applies for leave under
14                              subsection (3) within 30 days after the person
15                              becomes unfit and leave is refused -- the day on
16                              which leave is refused.

17   47.         Conduct of proceedings related to charitable trusts
18         (1)   This section applies to proceedings in the Court under the law
19               relating to charitable trusts, other than proceedings for an
20               offence under this Act.
21         (2)   An originating process lodged with the Court by a person other
22               than the Attorney General must be served on the Attorney
23               General.
24         (3)   When hearing the proceedings the Court is not bound by the
25               rules of evidence and may be informed and conduct the
26               proceedings in any manner the Court thinks fit.




                                                                             page 37
     Charitable Trusts Bill 2022
     Part 6          Gifts by certain trusts for philanthropic purposes

     s. 48



1          Part 6 -- Gifts by certain trusts for philanthropic
2                              purposes
3    48.       Terms used
4              In this Part --
5              eligible recipient means a deductible gift recipient --
6                (a) listed in item 1 of the Table to the Income Tax
7                       Assessment Act 1997 (Commonwealth) section 30-15;
8                       and
9                (b) that is not a charity due to its connection with
10                      government or by being a government entity but would
11                      be a charity if it did not have the connection with
12                      government or it was not a government entity;
13             former commencement day means the day on which the
14             Charitable Trusts Amendment Act 2011 came into operation;
15             former prescribed power means a prescribed power as defined
16             in the Charitable Trusts Act 1962 section 22D(1);
17             government entity has the meaning given in the Charities
18             Act 2013 (Commonwealth) section 4;
19             prescribed power, for a prescribed trust, means a power referred
20             to in section 49 or 50;
21             prescribed trust means --
22               (a) a fund referred to in item 2 of the Table to the Income
23                      Tax Assessment Act 1997 (Commonwealth)
24                      section 30-15, whether created before, on or after former
25                      commencement day; or
26               (b) a trust that is established and maintained for charitable
27                      or philanthropic purposes and is of a class prescribed by
28                      the regulations, whether created before, on or after
29                      former commencement day;
30             trust instrument, in relation to a prescribed trust, means the will
31             or instrument of trust establishing the prescribed trust, as
32             modified by all validly executed amendments.

     page 38
                                                             Charitable Trusts Bill 2022
                     Gifts by certain trusts for philanthropic purposes           Part 6

                                                                                  s. 49



1    49.         Prescribed trust: trust instrument containing express power
2                to give to eligible recipients
3                The trust instrument of a prescribed trust may include an
4                express power for the trustees to provide property or benefits to
5                or for an eligible recipient or for the establishment of an eligible
6                recipient.

7    50.         Prescribed trust: trust instrument not containing express
8                power to give to eligible recipients
9          (1)   The powers of the trustees of a prescribed trust, whose trust
10               instrument does not contain an express power to do so, include a
11               power to provide property or benefits to or for an eligible
12               recipient or for the establishment of an eligible recipient.
13         (2)   Subsection (1) --
14                (a) applies despite any provision to the contrary in the trust
15                      instrument; but
16                (b) does not apply in relation to a particular eligible
17                      recipient or a particular class of eligible recipients to the
18                      extent that there is an express prohibition in the trust
19                      instrument against the provision by the trustees of
20                      property or benefits --
21                         (i) to or for that eligible recipient or class of eligible
22                              recipients; or
23                        (ii) for the establishment of that eligible recipient or
24                              class of eligible recipients.

25   51.         Ancillary provisions
26         (1)   This Act applies to a prescribed power as if it were a power
27               exercisable for a charitable purpose.
28         (2)   Without limiting subsection (1) --
29                (a) neither the existence nor the exercise of the prescribed
30                     power affects the validity or status of a charitable trust
31                     as a charitable trust; and

                                                                               page 39
     Charitable Trusts Bill 2022
     Part 6          Gifts by certain trusts for philanthropic purposes

     s. 52



1                 (b)    a prescribed trust is to be construed and given effect to
2                        as if --
3                           (i) the prescribed power were a power exercisable
4                                for a charitable purpose; and
5                          (ii) any application of property held by the trust in
6                                the way allowed by the power were to or for a
7                                charitable purpose;
8                        and
9                  (c)   the existence or exercise of the prescribed power does
10                       not affect the control of a prescribed trust by the Court
11                       in the exercise of the Court's general jurisdiction in
12                       relation to charitable trusts; and
13                (d)    the jurisdiction mentioned in paragraph (c) extends to
14                       the prescribed power as if the power were exercisable
15                       for a charitable purpose.

16   52.         Validation provisions for period preceding former
17               commencement day
18         (1)   In this section --
19               former eligible recipient means an eligible recipient as defined
20               in the Charitable Trusts Act 1962 section 22A.
21         (2)   The provision, before former commencement day, by the
22               trustees of a prescribed trust of property or benefits to or for a
23               former eligible recipient or for the establishment of a former
24               eligible recipient --
25                 (a) is taken to be, and always to have been, a provision for
26                       an authorised and valid purpose of the prescribed trust;
27                       and
28                 (b) does not affect, and is taken never to have affected, the
29                       status of the prescribed trust as a charitable trust.




     page 40
                                                             Charitable Trusts Bill 2022
                     Gifts by certain trusts for philanthropic purposes           Part 6

                                                                                  s. 53



1          (3)   Subsection (2) applies despite a failure by the trustees of a
2                prescribed trust to do any of the following --
3                  (a) make a declaration under the Charitable Trusts Act 1962
4                        section 22C(3);
5                  (b) adhere to a limitation applicable in relation to the
6                        prescribed trust under the Charitable Trusts Act 1962
7                        section 22C(4) and (5);
8                  (c) comply with the Charitable Trusts Act 1962
9                        section 22C(6).
10         (4)   The inclusion of a former prescribed power in the trust
11               instrument of a prescribed trust before former commencement
12               day is taken to be, and always to have been, valid.

13   53.         Validation and transitional provisions for period preceding
14               commencement of this Part
15         (1)   In this section --
16               new commencement day means the day on which this Part
17               comes into operation.
18         (2)   The inclusion of a prescribed power in the trust instrument of a
19               prescribed trust on and after former commencement day but
20               before new commencement day is taken to be, and always to
21               have been, valid.
22         (3)   The exercise of a prescribed power on and after former
23               commencement day but before new commencement day is
24               taken to be, and always to have been, valid despite a failure by
25               the trustees of a prescribed trust to do any of the following --
26                 (a) make a declaration under the Charitable Trusts Act 1962
27                       section 22C(3);
28                 (b) adhere to a limitation applicable in relation to the
29                       prescribed trust under the Charitable Trusts Act 1962
30                       section 22C(4) and (5);
31                 (c) comply with the Charitable Trusts Act 1962
32                       section 22C(6).

                                                                               page 41
    Charitable Trusts Bill 2022
    Part 6          Gifts by certain trusts for philanthropic purposes

    s. 53



1      (4)    The inclusion of a former prescribed power in the trust
2             instrument of a prescribed trust on and after former
3             commencement day but before new commencement day is not,
4             under the law relating to charitable trusts, taken to create an
5             additional purpose for the prescribed trust.
6      (5)    The inclusion of a prescribed power in the trust instrument of a
7             prescribed trust on and after new commencement day is not,
8             under the law relating to charitable trusts, taken to create an
9             additional purpose for the prescribed trust.




    page 42
                                                         Charitable Trusts Bill 2022
                                                      Miscellaneous           Part 7

                                                                                  s. 54



1                            Part 7 -- Miscellaneous
2    54.         Protection from liability for persons performing functions
3                under Act
4          (1)   A person does not incur any civil or criminal liability for an act
5                done or omission made in good faith in the performance, or
6                purported performance, of a function under this Act or any other
7                law relating to charitable trusts.
8          (2)   In doing the act, the person is not liable --
9                  (a) to any disciplinary action under a written law; or
10                 (b) to be dismissed from any office or to have the person's
11                      employment terminated; or
12                 (c) to have the person's services dispensed with or
13                      otherwise terminated.
14         (3)   In this section, a reference to the doing of an act includes a
15               reference to making an omission.

16   55.         Regulations
17         (1)   The Governor may make regulations prescribing all matters that
18               are required or permitted by this Act to be prescribed, or are
19               necessary or convenient to be prescribed, for giving effect to the
20               purposes of this Act.
21         (2)   Without limiting subsection (1), the regulations may prescribe
22               the process for making and responding to a requirement as
23               defined in section 32(2).




                                                                            page 43
     Charitable Trusts Bill 2022
     Part 8          Repeal, savings and transitional provisions and consequential
                     amendment

     s. 56


1      Part 8 -- Repeal, savings and transitional provisions
2                and consequential amendment
3    56.         Charitable Trusts Act 1962 repealed
4                The Charitable Trusts Act 1962 is repealed.

5    57.         Savings and transitional provisions for Charitable Trusts
6                Act 1962
7          (1)   In this section --
8                commencement day means the day on which section 56 comes
9                into operation;
10               former Act means the Charitable Trusts Act 1962;
11               scheme application means an application to the Attorney
12               General or the Court under Part III of the former Act.
13         (2)   A scheme application pending immediately before
14               commencement day must be determined under the former Act
15               as if it had not been repealed.
16         (3)   An examination or inquiry commenced under section 20 of the
17               former Act but not concluded immediately before
18               commencement day may, in the Attorney General's discretion,
19               be continued --
20                 (a) under the former Act as if it had not been repealed; or
21                 (b) under Part 4 as if it had commenced as an investigation.
22         (4)   An application made under section 21 of the former Act but not
23               determined immediately before commencement day must be
24               determined under the former Act as if it had not been repealed.
25         (5)   A declaration under section 22C of the former Act continues in
26               operation on and after commencement day as if the former Act
27               had not been repealed.




     page 44
                                                       Charitable Trusts Bill 2022
    Repeal, savings and transitional provisions and consequential           Part 8
                                                      amendment

                                                                             s. 58


1   58.         Freedom of Information Act 1992 amended
2         (1)   This section amends the Freedom of Information Act 1992.
3         (2)   In Schedule 2 after the item for "The State Government Insurance
4               Corporation." insert:
5

6                     The Western Australian Charitable Trusts Commission.
7




                                                                         page 45
Charitable Trusts Bill 2022


Defined terms



                                              Defined terms
            [This is a list of terms defined and the provisions where they are defined.
                                   The list is not part of the law.]
      Defined term                                                                                             Provision(s)
      administration .......................................................................................................4
      alternative charitable purpose ........................................................................ 10(2)
      approval notice ............................................................................................... 17(1)
      approved scheme ...................................................................................................4
      auditor ............................................................................................................ 34(2)
      authorised person ................................................................................................ 28
      charitable purpose .................................................................................................4
      charitable trust.......................................................................................................4
      commencement day .............................................................................. 7(1), 57(1)
      complainant .............................................................................................. 28, 31(1)
      complaint ................................................................................................. 28, 31(1)
      costs and expenses ......................................................................................... 43(1)
      Court ..................................................................................................................... 4
      eligible recipient ................................................................................................. 48
      expenses ......................................................................................................... 24(1)
      former Act ...................................................................................................... 57(1)
      former commencement day ................................................................................. 48
      former eligible recipient ................................................................................. 52(1)
      former prescribed power ..................................................................................... 48
      government entity ............................................................................................... 48
      intended users .................................................................................................. 5(2)
      investigation ............................................................................................... 4, 32(1)
      investigator................................................................................................. 4, 32(1)
      investigator's report ................................................................................. 28, 41(1)
      involved in the administration...............................................................................4
      new commencement day ................................................................................ 53(1)
      original property ............................................................................................ 11(1)
      original purpose .................................................................................. 10(1), 11(1)
      other property................................................................................................. 11(1)
      prescribed power ................................................................................................. 48
      prescribed trust .................................................................................................... 48
      Principal Registrar ................................................................................................ 8
      privileged document or information............................................................... 36(1)
      property ................................................................................................................. 4
      property held for a charitable purpose ..................................................................4
      provider ............................................................................................................... 28
      recreational facilities ........................................................................................ 5(1)
      requirement .............................................................................................. 28, 32(2)
      scheme application ......................................................................................... 57(1)
      scheme report ............................................................................................. 8, 14(3)

page 46
                                                                            Charitable Trusts Bill 2022



                                                                                                    Defined terms



specified period .............................................................................................. 40(1)
trust instrument ................................................................................................... 48
unfit ................................................................................................................ 46(6)
Western Australian Charitable Trusts Commission ............................................ 28




 


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