Charities Act 1978

[27 December 1978]

[preamble and words of enactment omitted]

PART I

PRELIMINARY

Interpretation

1 In this Act, unless the context otherwise requires —

"charitable organization" means any person or body of persons having charitable purposes and relying for its funds substan tially upon contributions from members of the public in Bermuda;

"charitable purposes" means purposes which are beneficial to the public in general or to a certain section of the public, whether in Bermuda or elsewhere;

"the Commissioners" means the Charity Commissioners for Bermuda established by section 3;

"the Minister" means the Minister of Health and Social Services;

"prescribed" means prescribed by regulations made under sec tion 9;

"the Registrar" means the Registrar-General;

"the register" means the register of charitable organizations maintained by the Registrar in accordance with section 4.

Savings

2 (1) Part II shall not apply to any organization or body estab lished under any other public Act, nor to any school for the time being established in Bermuda.

(2) Nothing in this Act shall be construed so as to abridge or derogate from the Social Welfare Act 1971 [title 13 item 1].

Minister may appoint persons to serve on Charity Commissioners for Bermuda committee

3 (1) There shall be a committee to be called the Charity Com missioners for Bermuda, which shall have the powers and duties con-
ferred upon it by or under this Act.

(2) There shall be not less than five and not more than seven Commissioners, who shall be appointed by the Minister, and one of whom shall be so appointed as the Chairman of the Commissioners.

(3) The Chairman shall preside at every meeting of the Com missioners at which he is present but, in his absence, the Commission ers present may elect one of their number to preside. The Chairman or other Commissioner presiding shall have a casting vote in the event of an equality of votes upon any question before a meeting.

(4) A moiety or majority of the Commissioners present in Bermuda at the time of any meeting shall constitute a quorum.

(5) The Commissioners shall hold office during the pleasure of the Minister and, subject thereto, for a term of three years, and shall be eligible for re-appointment from time to time.

(6) Subject to this section, the Commissioners may regulate their own proceedings.

PART II

CHARITABLE ORGANIZATIONS AND APPEALS

Registration of charitable organizations

4 (1) The Registrar shall maintain a register in which shall be entered the name and address of every charitable organization approved by the Commissioners together with such other particulars as may be prescribed.

(2) Every charitable organization in Bermuda wishing to un dertake any money-raising activities shall apply to the Registrar to be registered as a charitable organization and the Registrar shall cause ev ery such application to be placed before the Commissioners for their consideration.

(3) In considering any application for registration submitted by a charitable organization, the Commissioners shall have regard to the declared purposes of the organization, the character and reputation of the persons connected with such organization and any other matter which the Commissioners may consider relevant.

(4) If the Commissioners are satisfied that any applicant for registration is a fit and proper charitable organization, they shall direct the Registrar to enter in the register its name and address and any other prescribed particulars thereof; and in any other case, they shall refuse to register the charitable organization. The Commissioners may direct ei ther that the registration of a charitable organization shall have effect in definitely or that it shall have effect for a period of twelve months at a time.

(5) The Minister may give general directions of a policy nature to the Commissioners, relating to the exercise of their functions under this section, and the Commissioners shall give effect to any such direc tions.

Cancellation of registration

5 (1) Where it appears to the Registrar that a registered charita ble organization may no longer be a fit and proper organization, he may give notice to that organization at its registered address that its registra tion will be cancelled within 15 days (or such longer period as he may specify in the notice) unless the organization shows cause to the satis faction of the Commissioners why its registration should not be can celled.

(2) Every notice of the kind specified in subsection (1) shall set out the grounds upon which the Registrar relies for the cancellation of the registration.

(3) In determining the question raised by any notice given un der subsection (1), the Commissioners shall take into consideration any written representation made by or on behalf of the charitable organiza tion and received by the Registrar within the period specified in the no tice or such further period as they may allow and may make such other enquiries and receive such evidence as to the Commissioners appears necessary for the proper determination of the question.

(4) If the charitable organization fails to satisfy the Commis sioners that it remains a fit and proper charitable organization, then the Commissioners shall direct the Registrar to cancel the registration and the same shall be cancelled accordingly, without prejudice to the right of the organization to submit a new application for registration at a later date.

Appeals

6 (1) Where the Commissioners have refused to register a chari table organization under section 4 or have directed the cancellation of its registration under section 5, the organization concerned may appeal to the Minister against such refusal or cancellation and, subject to subsec tion (2), the Minister's decision thereon shall be final.

(2) Where the charitable organization is dissatisfied with the decision of the Minister under subsection (1) as being erroneous in point

of law, the organization may appeal to the Supreme Court against the decision of the Minister and the Court may allow or dismiss the appeal or may make an order remitting the matter for further consideration by the Minister or the Commissioners as the Court may think fit.

(3) Any appeal under subsection (2) shall be commenced by notice of motion filed within 21 days of the notification of the decision of the Minister; the Minister shall be made respondent to every such appeal and the Attorney-General shall be served with a copy of the notice.

(4) The rules of court governing the conduct of appeals from administrative tribunals generally, made under the Supreme Court Act 1905, shall apply to appeals under subsection (2).

Restrictions on fund-raising activities

7 (1) No person or body of persons, except for a charitable orga nization registered under section 4 shall —

(a) solicit members of the public for; or

(b) receive from any member of the public in any public place,

a donation for any charitable purpose or for any professed purpose which is otherwise benevolent:

Provided that nothing in this subsection shall render unlawful the collection of donations from members of the congregation attending a religious service or prohibit or restrict the money-raising activities of an association of parents and teachers, or of former pupils, of any school in Bermuda conducted upon the premises of that school or upon other premises specifically approved for that purpose by the Commissioners.

(2) Any person who contravenes any provision of subsection (1) and any person (other than a donor) who aids and abets any other per son in any such contravention commits an offence:

Punishment on summary conviction: imprisonment for 6 months or a fine of $2,000 or both such imprisonment and fine.

Submission of accounts

8 (1) Every registered charitable organization shall maintain ac counts containing a statement of all moneys received for charitable pur poses and the expenditure thereof and containing such other information as may be prescribed.

(2) The treasurer or other person having supervision of the ac counts of any registered charitable organization shall submit a true copy of such accounts to the Registrar within six months of the end of each financial year.

(3) The Commissioners may, where they consider it desirable to do so, require that the accounts of any charitable organization for the preceding financial year shall be audited by a person approved by the Minister and the treasurer or other person having the supervision of the accounts of that charitable organization shall comply with any such re quirement.

(4) Any neglect or failure of any registered charitable organiza tion to comply with any provision of this section or with any requirement made thereunder shall be an additional ground upon which the Commis sioners may proceed to cancel the registration of that organization under section 5.

(5) Any accounts submitted to the Registrar pursuant to subsection (2) and any written report on or any written results of any audit required pursuant to subsection (3) shall be available for inspection by members of the public during normal working hours.

[section 8 amended by 1998 : 2 effective 18 March 1998]

Minister may make regulations

9 (1) The Minister may, after consultation with the Commission ers, make regulations for carrying into effect this Part, and without prej udice to the generality of the foregoing, such Regulations may provide —

(a) for the particulars to be submitted by a charitable orga nization applying to be registered under section 4;

(b) for the notification of any subsequent change in any of the material particulars contained in an application for registration;

(d) for the information and particulars to be included in the accounts maintained under section 8.

(2) The negative resolution procedure shall apply to regulations made under subsection (1).

PART III

APPLICATION OF PROPERTY CY-PRES

Occasions for applying property cy-pres

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

(a) where the original purposes, in whole or in part, —

(i) have been as far as may be fulfilled; or

(ii) cannot be carried out, or not according to the di rections given and to the spirit of the gift; or

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

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

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

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

(i) been adequately provided for by other means; or

(ii) ceased, as being useless or harmful to the com munity or for other reasons, to be in law chari table; or

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

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

(3) References in subsections (1) and (2) to the charitable pur poses of a gift shall be construed, where the application of the property given has been altered or regulated by a scheme or otherwise, as refer ring to the purposes for which the property is for the time being applica ble.

(4) A trust for charitable purposes places a trustee under a duty, where the case permits and requires the property or some part of it to be applied cy-pres, to secure its effective use for charity by taking steps to enable it to be so applied.

Application cy-pres of gifts of donors unknown or disclaiming

11 (1) Property given for specific charitable purposes which fail shall be applicable cy-pres as if given for charitable purposes generally, where it belongs —

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

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

(2) For the purposes of this section, property shall be conclu sively presumed (without any advertisement or inquiry) to belong to donors who cannot be identified, in so far as it consists—

(a) of the proceeds of cash collections made by means of collecting boxes or by other means not adapted for dis tinguishing one gift from another; or

(b) of the proceeds of any lottery, competition, entertain ment, sale or similar money-raising activity, after allow ing for property given to provide prizes or articles for sale or otherwise to enable the activity to be undertaken.

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

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

(b) that it would be unreasonable, having regard to the na ture, circumstances and amounts of the gifts, and to the lapse of time since the gifts were made, for the donors to expect the property to be returned.

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

(a) the scheme shall specify the total amount of that prop erty; and

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

(5) For the purposes of this section, charitable purposes shall be deemed to fail where any difficulty in applying property to those pur poses makes that property or the part not applicable cy-pres available to be returned to the donors.

(6) In this section, unless the context otherwise requires, refer ences to a donor include persons claiming through or under the original donor, and references to property given include the property for the time being representing the property originally given or property derived from it.

(7) In this section, "the Court" means, in respect of money or property exceeding in value two thousand dollars the Supreme Court, and in any other case, a court of summary jurisdiction.

(8) This section shall apply to property given for charitable purpose, notwithstanding that it was so given before 9 February 1979.

PART IV

TRANSITIONAL

Saving

12 (1) [omitted] [repeal of 1955:167]

(2) The registration of any charitable organization already reg istered under the Act hereby repealed shall continue in force notwith standing such repeal; but shall for all purposes hereafter be deemed to have been effected under section 4 of this Act and this Act shall apply to such charitable organization accordingly.

Commencement

13 [omitted]

[this Act was brought into operation on 9 February 1979 by GN 80/1979]

[see GN 103/1991 for list of charitable organizations registered]

[Amended by:
1998 : 2|

Bermuda Consolidated Legislation

Charities Act 1978