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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Charities (Amendment) Act 2005
Act No.
TABLE OF PROVISIONS
Clause Page
1. Purposes 1
2. Commencement 2
3. Principal Act 2
4. Section 1A substituted 2
1A. Definitions 2
5. Monetary limits increased 3
6. New sections 4A and 4B inserted 4
4A. Governor in Council may increase monetary limits 4
4B. Tabling before Parliament and disallowance 4
7. Regulations prescribing fees 5
8. New section 7A inserted 5
7A. Transitional provision--Charities (Amendment)
Act 2005 5
9. New Part IA inserted 5
PART IA--APPROVAL FOR INVESTMENT IN
COMMON FUNDS 5
7B. Powers of trustees under this Part 5
7C. Powers under this Part subject to provisions and
conditions of Order or approval 7
7D. Application to court 8
7E. Powers of court do not derogate from other powers 8
7F. Application to Attorney-General in respect of eligible
property 8
7G. Attorney-General may make investigations 9
7H. Attorney-General may approve application of Part 9
7I. Part continues to apply if corpus exceeds initial limits 10
10. New sections 9A and 9B inserted 10
9A. Attorney-General may require information 10
9B. Offence to fail to comply with requirement 11
ENDNOTES 12
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551258B.I1-23/2/2005 BILL LA INTRODUCTION 23/2/2005
PARLIAMENT OF VICTORIA
A BILL
to make miscellaneous amendments to the Charities Act 1978 and for
other purposes.
Charities (Amendment) Act 2005
The Parliament of Victoria enacts as follows:
1. Purposes
The main purposes of this Act are--
(a) to increase the monetary limits for
applications to the Attorney-General for
approval of cy près schemes;
5
(b) to provide for further increases of such
monetary limits by Order in Council;
(c) to provide for a scheme for the approval of
the investment of charitable trust property in
common funds by trustees;
10
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Charities (Amendment) Act 2005
s. 2
Act No.
(d) to provide for information to be obtained by
the Attorney-General from a charity or
charitable estate for the purposes of inquiring
into the administration of the charity or
estate under Part II of the Charities Act
5
1978.
2. Commencement
(1) Subject to sub-section (2), this Act comes into
operation on a day or days to be proclaimed.
(2) If a provision of this Act does not come into
10
operation before 30 November 2005, it comes into
operation on that day.
3. Principal Act
See: In this Act, the Charities Act 1978 is called the
Act No.
Principal Act.
15 9227.
Reprint No. 2
as at
10 February
2000
and
amending
Act No.
74/2000.
LawToday:
www.dms.
dpc.vic.
gov.au
4. Section 1A substituted
For section 1A of the Principal Act substitute--
'1A. Definitions
In this Act--
"eligible property" means property given
20
for charitable purposes where the total
value of the corpus of the property--
(a) is less than $500 000 or an amount
fixed under section 4A, whichever
is the greater; or
25
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s. 5
Act No.
(b) does not exceed $50 000 or an
amount fixed under section 4A,
whichever is the greater and the
property is given for specific
charitable purposes which fail;
5
"the court" means the Supreme Court.'.
5. Monetary limits increased
(1) In section 4(1) of the Principal Act--
(a) in paragraph (a), for "$50 000 or the
prescribed amount" substitute "$500 000 or
10
an amount fixed under section 4A";
(b) in paragraph (b), for "$1000" substitute
"$50 000 or an amount fixed under
section 4A, whichever is the greater,";
(c) for "prescribed fee" substitute "relevant
15
prescribed fee".
(2) In section 4(3) of the Principal Act--
(a) in paragraph (a)(ii), for "$50 000 or the
prescribed amount" substitute "$500 000 or
an amount fixed under section 4A";
20
(b) in paragraph (b)(ii), for "$1000" substitute
"$50 000 or an amount fixed under
section 4A, whichever is the greater".
(3) In section 5(1) of the Principal Act, for "$50 000
or the prescribed amount" substitute "$500 000 or
25
an amount fixed under section 4A".
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Act No.
6. New sections 4A and 4B inserted
After section 4 of the Principal Act insert--
"4A. Governor in Council may increase
monetary limits
Subject to section 4B, the Governor in
5
Council, by Order published in the
Government Gazette, may increase the
monetary limits set out in section 4 or 5.
4B. Tabling before Parliament and
disallowance
10
(1) The Attorney-General must cause a copy of
an Order made under section 4A to be laid
before each House of the Parliament within
10 sitting days after the Order is published in
the Government Gazette.
15
(2) An Order made under section 4A may be
disallowed by resolution of a House of the
Parliament within 15 sitting days after the
Order is tabled under sub-section (1).
(3) If an Order made under section 4A is not
20
disallowed under sub-section (2), the Order
takes effect on the later of--
(a) the date specified in the Order; or
(b) the date which is the day after the
expiry of the period for disallowance
25
under sub-section (2).
(4) If an Order made under section 4A is
disallowed under sub-section (2), the Clerk
of the Parliaments must cause notice of the
disallowance to be published in the
30
Government Gazette.".
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Charities (Amendment) Act 2005
s. 7
Act No.
7. Regulations prescribing fees
At the end of section 7 of the Principal Act
insert--
"(2) Regulations made under this Act--
(a) may be of general or limited
5
application;
(b) may differ according to differences in
time, place or circumstances;
(c) in the case of regulations prescribing
fees under sub-section (1)(b), may
10
provide for fees calculated on a sliding
scale.".
8. New section 7A inserted
After section 7 of the Principal Act insert--
"7A. Transitional provision--Charities
15
(Amendment) Act 2005
The amendments to sections 4 and 5 made
by the Charities (Amendment) Act 2005
apply in respect of any application under
either of those sections on or after the
20
commencement section 5 of that Act.".
9. New Part IA inserted
At the end of Part I of the Principal Act insert--
'PART IA--APPROVAL FOR INVESTMENT IN
COMMON FUNDS
25
7B. Powers of trustees under this Part
(1) The trustees of any property given for
charitable purposes in respect of which this
Part applies may--
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(a) establish one or more investment
common funds for the collective
investment of that property held by or
in the custody of the trustees;
(b) invest that property held by or in the
5
custody of the trustees in one or more
investment common funds.
(2) The trustees of any property given for
charitable purposes in respect of which this
Part applies, from time to time without
10
liability for breach of trust, may bring into or
withdraw from any investment common fund
the whole or any part of that property,
despite any direction to the contrary
(whether express or implied) contained in the
15
trust instrument.
(3) Subject to sub-section (4), the trustees of any
property given for charitable purposes in
respect of which this Part applies must
periodically distribute the income of each
20
investment common fund among the trusts
participating in the common fund, having
regard to the extent of the participation by
each trust in the common fund during the
relevant accounting period.
25
(4) The trustees of any property given for
charitable purposes in respect of which this
Part applies, if they consider it expedient to
do so, may, from time to time--
(a) add some portion of the income of the
30
common fund to the capital of the
common fund; or
(b) use some part of the income to establish
or augment a fund or funds as a
provision against capital depreciation or
35
reduction of income.
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(5) The trustees of any property given for
charitable purposes in respect of which this
Part applies may, out of the annual income of
a trust in an investment common fund,
periodically deduct an amount not exceeding
5
5% of that annual income as commission for
the administration of that trust.
(6) The commission deducted in accordance
with sub-section (5) is to be received and
accepted by the trustees of any property
10
given for charitable purposes in respect of
which this Part applies as full payment to
them for the costs of administration of the
trust in an investment common fund.
(7) The trustees of any property given for
15
charitable purposes in respect of which this
Part applies must not make any other charges
on a trust in an investment common fund in
addition to the commission received under
sub-section (6), except in accordance with
20
the trust instrument.
7C. Powers under this Part subject to
provisions and conditions of Order or
approval
The powers under section 7B of trustees of
25
any property given for charitable purposes in
respect of which this Part applies must be
exercised in accordance with the Order of the
court or the Attorney-General's approval
given under this Part, including any
30
provisions or conditions to which that Order
or approval is subject, as the case requires.
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Act No.
7D. Application to court
(1) The trustees of any property given for
charitable purposes may apply to the court
for an Order that this Part applies to those
trustees in respect of that property.
5
(2) An application under sub-section (1) must
specify the property or individual trusts or
class of property or trusts to which this Part
is to apply.
(3) On an application under this section, the
10
court, if satisfied that it is appropriate in the
circumstances for this Part to apply to those
trustees in respect of that property, may
make an Order that this Part applies, subject
to any provisions or conditions in that Order
15
that the court considers appropriate.
7E. Powers of court do not derogate from
other powers
The powers of the court under this Part are in
addition to, and not in derogation of, any
20
powers exercisable by the court in charity
proceedings.
7F. Application to Attorney-General in
respect of eligible property
(1) In lieu of making application to the court
25
(under this Part or otherwise), the trustees of
any eligible property may apply to the
Attorney-General for approval that this Part
applies to those trustees in respect of that
property.
30
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(2) An application under this section must--
(a) be in writing; and
(b) specify the eligible property or class of
eligible property to which this Part is to
apply; and
5
(c) be accompanied by the relevant
prescribed fee.
7G. Attorney-General may make
investigations
On receiving an application under
10
section 7F, the Attorney-General--
(a) may make such investigations and
inquiries as the Attorney-General thinks
fit; and
(b) may require the trustees to furnish such
15
information, opinions or advice as the
Attorney-General thinks fit.
7H. Attorney-General may approve
application of Part
(1) The Attorney-General, in his or her absolute
20
discretion, may approve an application made
under section 7F if the Attorney-General is
satisfied that it is appropriate in the
circumstances for this Part to apply to those
trustees in respect of the eligible property.
25
(2) An approval under this section--
(a) may be subject to any provisions and
conditions that the Attorney-General
thinks fit; and
(b) may authorise the investment of the
30
eligible property in common funds by
the trustees, despite the trustees having
no such power pursuant to the relevant
trust instrument.
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Act No.
(3) The Attorney-General does not, by virtue of
this Part, have any greater powers than are
exercisable by the court in charity
proceedings.
(4) In any case where the Attorney-General
5
approves the application of this Part in
respect of trustees of eligible property, the
trustees are not subject to any liability for
breach of trust arising solely from their
investment of that eligible property in
10
common funds, in accordance with this Part.
7I. Part continues to apply if corpus exceeds
initial limits
If the Attorney-General, under section 7H,
has approved the application of this Part to
15
trustees in respect of property given for
charitable purposes which is eligible
property at the time of that approval, this
Part continues to apply despite the total value
of the corpus of that property subsequently
20
exceeding the relevant amount specified in
the definition of "eligible property".'.
10. New sections 9A and 9B inserted
After section 9 of the Principal Act insert--
"9A. Attorney-General may require
25
information
(1) The Attorney-General may require the
trustees of a charity to give him or her any
information that the Attorney-General
considers necessary to determine whether an
30
inquiry under this Part should be conducted.
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(2) The Attorney-General must make the
requirement in a written notice that--
(a) identifies the information; and
(b) specifies--
(i) by when the requirement must be
5
complied with, being a period of
not less than one month; and
(ii) in what form the information is to
be given to the Attorney-General.
9B. Offence to fail to comply with
10
requirement
A person must comply with any requirement
made by the Attorney-General under
section 9A, unless the person has a
reasonable excuse for not doing so.
15
Penalty: 60 penalty units.".
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Charities (Amendment) Act 2005
Endnotes
Act No.
ENDNOTES
By Authority. Government Printer for the State of Victoria.
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