Swan and Canning Rivers Foundation Rules 2009

The Swan and Canning Rivers Foundation is a statutory body created under the Swan and Canning Rivers Management Act 2006. Its primary role is to accept gifts (including cash, in-kind contributions, undertakings to give over time, and testamentary bequests) for purposes connected with the Swan and Canning Rivers. The “Trust” refers to the Swan and Canning Rivers Trust established under the same Act, which oversees the Foundation through its board of management (the “board”). The Foundation is not an independent agency; it operates under the oversight of the Trust, and its Council must not act contrary to any requirements of the Trust.

Membership of the Foundation is the central concept. There are four categories: Protector (gifts of $100 to $4,999 in a one-year period), Advocate ($5,000 to $24,999 in a five-year period), Defender ($25,000 to $49,999 in a five-year period) and Champion ($50,000 or more in a five-year period). Membership is not perpetual; it lasts only for the period used to qualify (one year for Protectors, five years for the other categories). After that period, the member’s status presumably lapses unless further gifts are made. The Council has discretion to grant any category of membership to a person who does not meet the financial thresholds, if that person has provided services to the Trust or Foundation or contributions to the rivers or environment generally (rule 4(5)). This honorary membership power is subjective and unlimited in scope.

The Council is the Foundation’s governing organ. It consists of the Chairman of the board (from the Trust), the General Manager of the Trust, and three to five other persons appointed by the board. Council members serve terms of three years, with a maximum of six consecutive years. Initial appointments can be staggered with terms of one to three years. The Council is explicitly directed to perform the functions of the Foundation, subject to any requirements of the Trust.

Gifts are defined broadly. A gift can be in cash or kind; the value of a gift in kind is determined by the board or the Council. An undertaking to make a gift or series of gifts over up to five years is treated as if the gift were made at the time the undertaking is accepted (rule 5(2)). This means membership can be granted immediately based on a promise to donate. If the promise is not fulfilled within one month of a notice that the gift is due, the deemed gift treatment ceases, and the member’s category is recalculated based on what was actually given. A testamentary bequest undertaking is treated as a gift equal to half the specified amount at the time of acceptance (rule 5(5)). This creates a notional gift before the bequest takes effect, potentially allowing a person to gain membership during their lifetime based on a will.

Patrons may be appointed by the Council (rule 7) and a register of Friends may be established by resolution (rule 8). Friends are not members and have no voting rights under these rules unless the Council determines otherwise by by-law.

The rules directly affect the Foundation itself as an entity, its Council members, its officers (including the Executive Officer and any employees), and its members. The board of management of the Swan and Canning Rivers Trust is also directly affected because it appoints the majority of the Council, can approve by-laws, and has oversight over the Foundation’s financial accounts. The Trust’s accountable authority receives the financial records and must be satisfied with their quality.

For donors to the Trust or the Foundation, these rules create a formal membership structure tied to donation amounts. A person or organisation considering a donation between $100 and $4,999 will become a Protector for one year; donations at higher thresholds confer longer (five-year) membership at higher categories. Larger donors may value the prestige of being a Champion or Defender, but the rules give them no greater voting power than a Protector (each member has one vote at general meetings regardless of category). The distinction is purely honorific.

Entities or individuals who make undertakings to donate are treated as having made the gift immediately for membership purposes, subject to the risk of default and re-categorisation if the undertaking is not honoured. Those considering testamentary bequests can obtain immediate membership (for half the bequest amount) during their lifetime, which may be an incentive for estate planning but also creates a potential administrative complexity if the will is later changed.

The Council members themselves are subject to term limits, disqualification for absenteeism (three consecutive meetings without leave), bankruptcy, unsound mind or imprisonment. They must resign by notice. The Executive Officer, if appointed, may attend Council meetings but cannot vote.

Employees of the Foundation and agents appointed by the Council are subject to the Council’s direction and the by-laws. The public, as potential Friends, may be admitted to a register but have no statutory rights under these rules. Lawyers and compliance professionals advising the Foundation or the Trust need to understand the interaction between these rules and the Act, particularly regarding the powers of the Council and the constraints imposed by the Trust.

The primary duty is on the Council to perform the functions of the Foundation in the name of the Foundation. This duty is qualified by the requirement that the Council must not act contrary to any requirements of the Trust (rule 9(3)). The Council also has a duty to keep accurate minutes of its meetings and provide copies to the board (rule 11(5)), and to submit an annual report to the annual general meeting including a statement of financial transactions and financial position (rule 14(2)). The Council is obliged to give at least seven days’ notice of general meetings to each member (rule 14(3)). The Council must keep proper accounts and records to the satisfaction of the accountable authority of the Trust, bring all money received to account, ensure payments are correctly made and properly authorised, and maintain adequate control over incurring liabilities (rule 18(1)). The accounts must be available for inspection by members of the Council and members of the board during normal office hours (rule 18(2)). Notably, this inspection right is not extended to ordinary members of the Foundation, only to Council and board members. That may be significant for transparency.

The Council has powers to do all things necessary or convenient for performing the Foundation’s functions (rule 12(1)). It may employ persons, appoint agents and obtain professional or other services (rule 12(2)). It may appoint committees of persons it considers appropriate, discharge or alter committees, and delegate procedure to them (rule 13). The Council may, with Trust approval, make by-laws on operations and proceedings (rule 19).

Members have the right to attend general meetings, vote (one vote per member on a show of hands or on a poll), and demand a poll (rules 16, 17). Members may vote by proxy (written appointment) and body corporate or unincorporate members may appoint a representative (rule 17). Members may resign by written notice (rule 6). Members have the right to have the value of in-kind gifts determined by the board or Council (rule 5(1)), and to have their membership category determined under the criteria (rule 4(4)), subject to the Council’s discretionary power to grant a higher category for services rendered.

Council members have the right to attend and vote at Council meetings (with a casting vote for the presiding member in case of equality), to be given notice of meetings, and to resign. They are entitled to have a term of three years, reappointable up to six consecutive years. Officers of the Foundation may attend Council meetings but cannot vote (rule 11(4)).

The rules themselves contain no express penalties, fines, or enforcement mechanisms that involve external authorities. Non-compliance with the rules results in internal consequences only. For example, a member who fails to honour a gift undertaking after receiving a notice that the gift is due will lose the benefit of the deemed-gift treatment (rule 5(3)), and their membership will be recalculated based on actual gifts made. A Council member who is absent from three consecutive meetings without leave vacates their office (rule 10(b)). A Council member who becomes an undischarged bankrupt, is of unsound mind, or is sentenced to imprisonment also vacates office (rule 10(c)-(e)). There is no provision for the removal of a Council member for breach of duty, other than the automatic vacancy grounds.

The Council’s financial record-keeping duty is owed to the Trust’s accountable authority, but the rules do not specify consequences for failing to keep satisfactory accounts. The Act under which these rules are made may provide for offences (e.g., misuse of funds), but the rules themselves do not.

If a by-law made under rule 19 is contravened, the rules do not state a penalty. The Act might authorise penalties for breach of regulations, but that is not found here.

Enforcement of the rules is essentially internal: the board of the Trust can remove or replace appointed Council members (since they serve at the board’s pleasure, though the rules do not explicitly say the board can remove them for cause, the board could simply not reappoint after a term, or could direct the Council under rule 9(3)). The Council can discipline itself through its power to grant or deny leave for absences, to determine meeting procedures, and to make by-laws.

For members, the only sanction is loss of membership category or resignation. There are no fines or legal penalties for members who fail to comply with rules. The Foundation’s common seal and execution requirements (rule 20) are administrative and any defect in execution may affect the validity of documents, but the rule creates a presumption of due execution unless contrary is shown.

These rules are made under section 19 of the Swan and Canning Rivers Management Act 2006 (the Act). The Act establishes the Swan and Canning Rivers Trust and the Swan and Canning Rivers Foundation, defines their functions and powers, and provides for the making of rules by regulation. The rules must be read in the context of the Act. For example, rule 11(6) expressly refers to Schedule 6 clauses 9 and 10 of the Act (modified as necessary) for electronic meetings and passing of resolutions without a meeting. That means the procedural rules of the Act for board meetings apply to the Council as modified.

The “board” referred to in these rules is the board of management established under section 18 of the Act. The “Trust” is the Swan and Canning Rivers Trust established under the Act. The Council is bound by any “requirements of the Trust” (rule 9(3)), which likely includes policies and directions issued under the Act.

The financial provisions require accounts to be kept to the satisfaction of the “accountable authority of the Trust” (rule 18(1)). That phrase likely comes from the Financial Management Act 2006 (WA) or the Public Sector Management Act 1994, which define accountable authorities for statutory bodies. The Foundation’s accounts would be subject to audit and reporting obligations under those general public sector financial laws. The rules do not override any requirements of the Public Sector Management Act, the Financial Management Act or the Auditor General Act 2006.

The rules also interact with general WA law on execution of documents by statutory bodies. Rule 20 provides a regime for execution under common seal and by authorised persons. This regime should be read in conjunction with the Corporations (Ancillary Provisions) Act 2001 (WA) if the Foundation is taken to be a corporation, but the specific rule likely overrides general law for the Foundation’s purposes.

The rules do not create any interaction with private contract law regarding gifts. The gift provisions (rule 5) deem certain undertakings to be gifts for membership purposes, but they do not affect the enforceability of the undertaking as a contract. A person who defaults on a promise to donate may face only loss of membership, not a debt action, unless the Trust pursues a separate contractual claim.

Interpretation Act 1984 (WA) applies to these rules as subsidiary legislation. Terms defined in the Act may be relevant, though the rules define their own terms (board, Council, officer of the Foundation). There is no interaction with other WA river management laws such as the Rights in Water and Irrigation Act 1914, except insofar as the Foundation’s purposes relate to the rivers.

According to the compilation table appended to the rules, the Swan and Canning Rivers Foundation Rules 2009 were first gazetted on 11 December 2009 at pages 5031 to 5042. Rules 1 and 2 (citation and commencement) came into operation on 11 December 2009, being the date of gazettal. The remaining rules commenced the following day, 12 December 2009. There are no amendments listed in the compilation table. The rules appear to be in their original form as enacted. No subsequent amendments have been made to these rules as of the date of the compiled version provided. The absence of amendment history is notable: the rules have remained unchanged for over 15 years. This may reflect a low level of regulatory activity for the Foundation, or that the rules were well-designed initially. However, any subsequent amendments that have occurred would be recorded in a later compilation. The compilation table shows only the original gazettal. Users should check the current version on the WA legislation website to confirm whether later amendments exist beyond this compilation. The “Notes” section at the end of the document indicates that this is a compilation, but the table only contains the original entry. That suggests no amendments have been incorporated as of the compilation date. The rules are relatively brief and procedural, so amendment may not have been necessary.

The provided source contains no reference to any litigation. There is no mention of court cases, tribunal decisions, or any dispute resolution involving the Swan and Canning Rivers Foundation or its rules. It is not possible to infer any litigation history from the text. Given that the rules are largely procedural and internal, they are unlikely to have been the subject of direct judicial interpretation. However, the Act under which they are made may have been litigated in the State Administrative Tribunal or the Supreme Court of Western Australia, but that is beyond the scope of the rules themselves. The rules themselves do not create any private rights of action or penalties that would naturally lead to litigation. Any challenge to the Foundation’s membership decisions or Council actions would likely be brought under administrative law principles (judicial review) or under the Act, but the rules do not provide any internal review mechanism. The absence of litigation history in the source does not mean none exists; it simply cannot be stated based on the provided text. A thorough search of WA case law would be needed to identify any cases involving the Foundation. This deep dive does not engage in that external research. The rules contain no express dispute resolution clause. If a member disputes their category or a Council decision, the only internal recourse is to seek a Council reconsideration, as the rules allow the Council to determine membership from time to time (rule 4(4)). The Council’s discretionary power to grant a different category under rule 4(5) is not limited to initial determination, implying it can be exercised over time.

Several provisions in the rules create potential traps for the unwary. Under rule 5(2), a person who undertakes to make a gift or series of gifts over up to five years is treated as having made that gift at the time the undertaking is accepted. This means membership is granted immediately on a promise, but rule 5(3) states that if the undertaking is not complied with within one month of the Foundation giving notice that the gift is due, the deemed gift ceases and membership is recalculated. A member who forgets to pay or delays may suddenly find their membership downgraded or lost. The notice trigger is the Foundation giving notice, not the promise falling due, so responsibility lies on the Foundation to chase payment. If the Foundation does not give notice promptly, the one-month clock may not start, but the member may continue to enjoy membership based on an unfulfilled promise. That could lead to a discrepancy between perceived and actual membership.

Testamentary bequest undertakings are treated as gifts equal to half the bequest amount, immediately on acceptance (rule 5(5)). A person can become a member during their lifetime based solely on a will that has not yet come into effect. If they later change their will, the original undertaking might be revoked, but the rules do not address revocation. The undertaking is presumably accepted by the board or Council, and the Foundation may rely on it. If the will is changed, the member might need to provide a new testamentary gift to retain membership, but the rules are silent. This could lead to the Foundation having a notional “gift” that never materialises.

The quorum for general meetings is the lesser of 50 members or 10% of members, but that quorum must include two Council members, one of whom must be the General Manager of the Trust or a member appointed under rule 9(1)(c) (rule 15). If the Council members are unavailable, a general meeting cannot proceed even if many members attend. This gives the Council effective control over the conduct of meetings by potentially not attending.

Voting power is strictly one member, one vote, regardless of donation tier. A Champion who has donated over $50,000 has the same vote as a Protector who donated $100. This could disincentivise large donations if donors expect influence. There is no weighted voting. The casting vote for the presiding member (likely a Council member) can break ties, giving the Council additional control.

The annual general meeting must receive a financial statement and operations report, but general members have no right under these rules to inspect the accounts. Only Council members and board members can inspect accounts during normal office hours (rule 18(2)). This limits transparency for the membership base.

The Council’s power to make by-laws (rule 19) requires Trust approval, but the rules do not require by-laws to be notified to members or published in the Gazette. By-laws could impose additional membership obligations or fees without member input.

A Council member vacates office if absent from three consecutive meetings without leave (rule 10(b)). The Council controls leave, so a Council member can be forced out by the majority if meetings are scheduled frequently and leave is denied. There is no appeal mechanism.

The Foundation’s common seal requirements are strict: sealing requires two Council members or one Council member and an authorised officer (rule 20(4)). This may cause inconvenience if only one Council member is available.

Compliance with these rules is primarily the responsibility of the Council and the Foundation’s officers, but members and the Trust’s board also have obligations.

For the Council: immediately upon formation, it should determine its own meeting procedures (rule 11(1)), set a quorum (default three members, unless otherwise resolved), and keep accurate minutes of all meetings, providing copies to the board. The Council must ensure that the Foundation’s functions are performed and that it does not act contrary to any requirements of the Trust. It must hold an annual general meeting as soon as practicable after the end of each financial year, with at least seven days’ notice to members, and submit an annual report including a statement of financial transactions and financial position. The Council must maintain proper accounts and records to the satisfaction of the Trust’s accountable authority, bring all money to account, authorise payments correctly, and control liabilities. The accounts must be available for inspection by Council and board members. The Council should establish a register of members by category, track gift undertakings and testamentary bequests, and monitor time periods for membership (one year for Protectors, five years for other categories). If a gift undertaking is due and not paid, the Council should give notice to the member promptly; if payment does not occur within one month, the deeming of the gift ceases and membership must be recalculated. The Council may appoint a patron or establish a register of Friends by resolution. If the Council wishes to make by-laws, it must obtain Trust approval. The Council should also ensure the Foundation has a common seal and that documents are executed properly: sealing requires two Council members or one Council member and an authorised officer. Authorisations to sign without seal should be in writing under seal.

For members: to obtain or maintain membership, ensure that the required gift thresholds are met and that any undertakings are honoured within the timeframe noted by the Foundation. Be aware that a testamentary bequest undertaking will be treated as a half gift immediately, which may affect estate planning. Members should notify the Council of any changes to their contact details to receive notice of meetings. They may appoint proxies for general meetings in writing. If a member wishes to resign, a written notice to the Council is sufficient. Members may request a poll at general meetings.

For the board of the Trust: it must appoint three to five persons to the Council (in addition to the Chairman and General Manager) for three-year terms, ensuring they do not exceed six consecutive years. The board should monitor that the Council does not act contrary to Trust requirements and should receive copies of Council minutes and annual reports. The board must approve any by-laws made by the Council. The Trust’s accountable authority must be satisfied with the Foundation’s accounts.

For officers of the Foundation: they may attend Council meetings but cannot vote. They must assist the Council in keeping minutes and accounts. If authorised, they may execute documents without seal under certain conditions.

Regular audits (though not required by these rules) would help ensure compliance with financial provisions. The Council should maintain a policy on accepting gifts in kind and determining their value. All dealings should be documented to demonstrate compliance with the rules.