Western Australian Health Promotion Foundation Act 2016 (Western Australia)

The Western Australian Health Promotion Foundation Act 2016 establishes the statutory framework, administrative machinery, and financial parameters for the Western Australian Health Promotion Foundation. The Foundation operates as a highly centralised, Crown-agent funding body tasked with distributing public money to third-party organisations. Mechanically, the Act repeals the legacy administrative and governance provisions formerly housed in Part 5 of the Tobacco Products Control Act 2006, consolidating the Foundation's corporate identity, funding powers, and operational constraints into a standalone statute. This legislative separation decouples the State's health promotion funding apparatus from tobacco-specific regulation, expanding its statutory scope to fund broader health, sport, arts, research, and community initiatives.

Under section 5, the Foundation is established as a body corporate with perpetual succession and the capacity to operate under one or more trading names approved by the Minister. Structurally, it functions as an agent of the State, enjoying the immunities and privileges of the Crown, and is classified as a Senior Executive Service organisation under the Public Sector Management Act 1994 (section 6). The primary mechanical operation of the Act is the statutory redirection of public capital. Under section 43, a prescribed amount of money is automatically appropriated from the Consolidated Account to the Western Australian Health Promotion Account in each financial year. The Foundation is then empowered to disburse these funds via grants to sporting, arts, health, community, research, youth, and racing organisations (section 8).

While the stated object of the Act is to promote and facilitate good health and encourage healthy lifestyles (section 4), its mechanical provisions focus heavily on state control and financial distribution. The Act implements a dual-key funding structure. Although the board is tasked with evaluating and selecting grant recipients, section 43(5) stipulates that all disbursement decisions must be approved by the Minister before any money is paid. The Act also permits the Foundation to engage in commercial activities. Under section 8(2)(b), it may produce and market goods and services that form part of health promotion activities to cover costs and generate revenue, provided it does not operate with a profit-making purpose (section 7(2)).

CrestWestern Australia

Western Australian Health Promotion Foundation Act 2016

Western Australia

Western Australian Health Promotion Foundation Act 2016

Contents

Part 1 — Preliminary

Short title 2
Commencement 2
Terms used 2
Object of Act 3

Part 2 — Western Australian Health Promotion Foundation

Division 1 — The Foundation

Foundation established 4
Status of Foundation 4

Division 2 — Functions of Foundation

Functions 4
Powers 5
Delegation by Foundation 6

Part 3 — Administration of Foundation

Division 1 — How Foundation is constituted

Term used: unable to act 8
Foundation membership, presiding member 8
Deputy presiding member 9
Remuneration and allowances 9
Term of office 9
Casual vacancies 9
Extension of term of office during vacancy 10
Leave of absence 11
Alternate members 11

Division 2 — Foundation meetings

Holding meetings 11
Quorum 11
Presiding member 12
Procedure at meetings 12
Holding meetings remotely 12
Voting 12
Resolution without meeting 12
Minutes to be kept 12

Division 3 — Committees

Committees 13
Remuneration and allowances 13

Division 4 — Disclosure of interests

Term used: member 13
Disclosure of material personal interest 14
Voting by interested member 14
Section 31 may be declared inapplicable 14
Quorum where section 31 applies 15

Division 5 — Execution of documents

Execution of documents by Foundation 15

Part 4 — Staff

Chief executive officer 17
Other staff 17
Contracts for services 17
Use of other government staff and facilities 17

Part 5 — Accountability

Minister may give directions 19
Minister to have access to information 19

Part 6 — Financial provisions

Application of Financial Management Act 2006 and Auditor General Act 2006 21
Western Australian Health Promotion Account 21
Foundation’s funds and expenditure 21
Notice of financial difficulty 23

Part 7 — Miscellaneous

Protection from liability for wrongdoing 24
Confidentiality of information 24
Regulations 25
Laying documents before House of Parliament not sitting 25
Review of Act 25

Part 8 — Consequential amendments to other Acts

Division 1 — Constitution Acts Amendment Act 1899 amended

Act amended 27
Schedule V amended 27

Division 2 — Public Sector Management Act 1994 amended

Act amended 27
Schedule 2 amended 27

Division 3 — Tobacco Products Control Act 2006 amended

Act amended 27
Section 3 replaced 28
Purposes of Act 28
Part 5 heading replaced 28

Part 5 — Administration

Part 5 Divisions 1 to 3 deleted 28
Part 5 Division 4 heading deleted 28
Section 122 deleted 29
Section 124A amended 29
Section 126 deleted 29
Schedule 1 deleted 29
Schedule 2 deleted 29
Glossary amended 29

Part 9 — Transitional provisions

Terms used 31
Interpretation Act 1984 not affected 31
Foundation continues 31
Members cease to hold office on transition day 32
First Foundation members under this Act 32
First CEO under this Act 32
Other employees of Foundation 32
Preservation of employee rights 33
People engaged to provide assistance 33
Western Australian Health Promotion Account 34
Investments 34
Exemption from State tax 34
Transitional regulations 35

Notes

Compilation table 37

Defined terms

View image in the official sourceWestern Australia

Western Australian Health Promotion Foundation Act 2016

An Act to —

make provision for the Western Australian Health Promotion Foundation; and
make consequential amendments to the Tobacco Products Control Act 2006 and other Acts.

Part 1 — Preliminary

1. Short title

This is the Western Australian Health Promotion Foundation Act 2016.

2. Commencement

This Act comes into operation as follows —

(a) Part 1 — on the day on which this Act receives the Royal Assent;

(b) the rest of the Act — on a day fixed by proclamation, and different days may be fixed for different provisions.

3. Terms used

In this Act, unless the contrary intention appears —

Account means the Western Australian Health Promotion Account mentioned in section 42(1);

CEO means the chief executive officer of the Foundation mentioned in section 35(1);

committee means a committee appointed under section 27(1);

Foundation means the Western Australian Health Promotion Foundation mentioned in section 5;

member means a member of the Foundation mentioned in section 11(1)(a) or (b);

presiding member means the member of the Foundation mentioned in section 11(1)(a);

racing means horse racing or pacing, dog racing, motor car racing or motorcycle racing;

sporting includes recreational and other such activities but does not include racing;

staff member means the CEO or a person appointed or engaged as mentioned in section 36(1) or (2).

4. Object of Act

The object of this Act is to promote and facilitate in Western Australia good health and activities which encourage healthy lifestyles.

Part 2 — Western Australian Health Promotion Foundation

Division 1 — The Foundation

5. Foundation established

(1) A body called the Western Australian Health Promotion Foundation is established.

(2) The Foundation is a body corporate with perpetual succession.

(3) Proceedings may be taken by or against the Foundation in its corporate name.

(4) The Foundation may use, and operate under, one or more trading names approved by the Minister.

(5) A trading name can be —

(a) an abbreviation or adaptation of the Foundation’s corporate name; or

(b) a name other than the Foundation’s corporate name.

6. Status of Foundation

(1) The Foundation is an agent of the State and has the status, immunities and privileges of the State.

(2) The Foundation is an SES organisation under the Public Sector Management Act 1994.

Division 2 — Functions of Foundation

7. Functions

(1) The functions of the Foundation are —

(a) to fund activities related to the promotion of good health in general with particular emphasis on young people; and

(b) to support sporting and arts activities which encourage healthy lifestyles and advance health promotion programmes; and

(d) to fund research relevant to health promotion; and

(e) to raise funds by soliciting donations and grants and, subject to subsection (2), engaging in the production or marketing mentioned in section 8(2)(b) in order to support the work of the Foundation; and

(f) to evaluate and report on the effectiveness of the performance of the Foundation in achieving health promotion activities; and

(g) generally to achieve the object of this Act.

(2) It is not a purpose of the Foundation to make a profit by engaging in the production or marketing mentioned in section 8(2)(b), but any surplus of revenue over expenditure arising as a result of that engagement must be credited to the Account.

8. Powers

(1) The Foundation has all the powers it needs to perform its functions.

(2) Without limiting subsection (1), the Foundation may for the purpose of performing a function —

(a) make grants to any of the following —

(i) sporting organisations;

(ii) arts organisations;

(iii) health organisations;

(iv) community organisations;

(v) research organisations;

(vi) youth organisations;

(vii) racing organisations;

and

(b) engage in the production or marketing or both of goods and services which themselves constitute or form part of health promotion activities —

(i) to promote the object of this Act and the functions of the Foundation; and

(ii) to cover the cost of that production or marketing or both by generating revenue;

and

9. Delegation by Foundation

(1) The Foundation may, subject to this section, delegate any power or duty of the Foundation under another provision of this Act to —

(a) a member, the CEO or any other staff member; or

(b) a committee.

(2) The Foundation cannot delegate its function of determining to whom, or in what amounts, financial support may be provided from money standing to the credit of the Account unless that function —

(a) is delegated to the CEO or a committee; and

(b) is limited to amounts of $5 000 or less.

(3) The delegation must be in writing executed by the Foundation.

(4) The delegation may expressly authorise the delegate to further delegate the power or duty unless the delegation is of a kind mentioned in subsection (2).

(5) When a delegation is made to a committee under this section —

(a) the instrument of delegation may regulate the procedures to be followed by the committee when acting under the delegation; and

(b) the committee may, if the instrument of delegation so provides, act by a majority of the committee members present at a meeting of the committee.

(6) A person to whom, or a member of a committee to which, a power or duty is delegated under this section is disqualified from acting under the delegation in relation to any matter in which the person or the member of the committee has a material personal interest.

(7) A person exercising or performing a power or duty that has been delegated to the person under, or as authorised under, this section must be taken to do so in accordance with the terms of the delegation unless the contrary is shown.

(8) Nothing in this section limits the ability of the Foundation to perform a function through an officer or agent.

(9) This section does not apply to the execution of documents but authority to execute documents on behalf of the Foundation can be given under section 34(5).

Part 3 — Administration of Foundation

Division 1 — How Foundation is constituted

10. Term used: unable to act

In this Division —

unable to act means unable to act as a member for any reason, including —

(a) illness; and

(b) absence; and

11. Foundation membership, presiding member

(1) The Foundation consists of —

(a) the presiding member appointed under subsection (3); and

(b) 6 other members appointed by the Minister.

(2) Of the 7 members —

(a) at least one must be a person who, in the opinion of the Minister, has knowledge of and experience in the arts; and

(b) at least one must be a person who, in the opinion of the Minister, has knowledge of and experience in health; and

(d) each of the others must be a person who, in the opinion of the Minister, has knowledge of and experience in one or more of the fields of the arts, finance, governance, health, law, management, marketing or sport.

(3) The presiding member must be appointed by the Minister on the nomination of the Premier.

(4) The Premier must consult with the parliamentary leader of each party in the Parliament before making a nomination for the purposes of subsection (3).

12. Deputy presiding member

(1) The Minister must designate a member other than the presiding member to be the deputy presiding member of the Foundation.

(2) If the presiding member is unable to act or if there is no presiding member, the deputy presiding member must act in the presiding member’s place.

(3) An act or omission of the deputy presiding member acting in the presiding member’s place cannot be questioned on the ground that the occasion to act had not arisen or had ceased.

13. Remuneration and allowances

Members are entitled to be paid out of the funds of the Foundation any remuneration and allowances that the Minister may from time to time determine on the recommendation of the Public Sector Commissioner.

14. Term of office

(1) A member holds office for the term, not exceeding 3 years, that is specified in the member’s instrument of appointment.

(2) A member is eligible for reappointment but cannot hold office for more than 9 years, consecutively or otherwise.

15. Casual vacancies

(1) In this section —

misconduct includes conduct that renders the member unfit to hold office as a member even though the conduct does not relate to a duty of the office.

(2) The office of a member becomes vacant if the member —

(a) dies, resigns or is removed from office under this section; or

(b) is, according to the Interpretation Act 1984 section 13D, a bankrupt or a person whose affairs are under insolvency laws; or

(d) is convicted of an offence under section 30(1).

(3) A member may at any time resign from office by written notice given to the Minister.

(4) The Minister may remove a member from office on the grounds of —

(a) neglect of duty; or

(b) misconduct or incompetence; or

(d) absence, without leave, from 3 consecutive meetings of the Foundation of which the member has had notice.

16. Extension of term of office during vacancy

(1) If the office of a member becomes vacant because the member’s term of office expires by effluxion of time, the member must be taken to continue to be a member during that vacancy until the date on which the vacancy is filled (whether by reappointment of the member or appointment of a successor to the member).

(2) Subsection (1) ceases to apply if the member resigns or is removed from office under section 15.

(3) The maximum period for which a member must be taken to continue to be a member under this section after the member’s term of office expires is 3 months.

17. Leave of absence

The Foundation may, on any terms and conditions it thinks fit, grant a member leave to be absent from office.

18. Alternate members

(1) If a member other than the presiding member is unable to act, the Minister may appoint another person as an alternate member to act temporarily in the member’s place.

(2) If the deputy presiding member is unable to act in the presiding member’s place at a meeting —

(a) the members present may elect one of their number to act as presiding member; and

(b) subsection (1) applies as if the member elected were absent from the meeting.

(3) While acting in accordance with the appointment, the alternate member must be taken to be, and to have any entitlement of, a member.

(4) An act or omission of an alternate member cannot be questioned on the ground that the occasion for the appointment or acting had not arisen or had ceased.

Division 2 — Foundation meetings

19. Holding meetings

The first meeting of the Foundation after this section comes into operation must be convened by the presiding member and subsequent meetings are to be held at times and places determined by the Foundation.

20. Quorum

Four members constitute a quorum.

21. Presiding member

The presiding member must preside at a meeting of the Foundation at which the presiding member is present.

22. Procedure at meetings

The Foundation must determine its own meeting procedures to the extent that they are not fixed by this Act.

23. Holding meetings remotely

The presence of a person at a meeting of the Foundation need not be by attendance in person but may be by that person and each other person at the meeting being simultaneously in contact by telephone or other means of instantaneous communication.

24. Voting

(1) At a meeting of the Foundation, each member present has a deliberative vote unless section 31 prevents the member from voting.

(2) In the case of an equality of votes, the member who is presiding has a casting vote in addition to a deliberative vote.

(3) A question is resolved by a majority of the votes cast.

25. Resolution without meeting

A resolution in writing signed or otherwise assented to in writing by each member has the same effect as if it had been passed at a meeting of the Foundation.

26. Minutes to be kept

The Foundation must keep accurate minutes of its meetings.

Division 3 — Committees

27. Committees

(1) The Foundation may —

(a) appoint any committee it considers necessary to provide advice or assistance to the Foundation in relation to the Foundation’s functions; and

(b) appoint the members, and determine the functions, of a committee; and

(2) The Foundation must ensure that there are sufficient country representatives appointed as committee members.

(3) A committee must comply with all reasonable directions or requirements of the Foundation, and otherwise may determine its own procedures.

(4) A committee must keep minutes of its meetings to a standard approved by the Foundation and provide the Foundation with a copy of the minutes of each meeting.

28. Remuneration and allowances

Committee members are entitled to be paid out of the funds of the Foundation any remuneration and allowances that the Minister may from time to time determine on the recommendation of the Public Sector Commissioner.

Division 4 — Disclosure of interests

29. Term used: member

In this Division other than section 33 —

member includes a committee member.

30. Disclosure of material personal interest

(1) A member who has a material personal interest in a matter being considered or about to be considered by the Foundation or a committee must, as soon as possible after the relevant facts have come to the member’s knowledge, disclose the nature of the interest at a meeting of the Foundation or the committee, as is relevant.

Penalty: a fine of $10 000.

(2) A disclosure under this section must be recorded in the minutes of the meeting.

31. Voting by interested member

(1) A member who has a material personal interest in a matter that is being considered by the Foundation or a committee —

(a) must not vote, whether at a meeting or otherwise, on the matter; and

(b) must not be present while the matter is being considered at a meeting.

(2) A reference in subsection (1)(a) or (b) to a matter includes a reference to a proposed resolution under section 32 in respect of the matter, whether relating to that member or a different member.

32. Section 31 may be declared inapplicable

Section 31 does not apply if —

(a) a member has disclosed under section 30 an interest in a matter; and

(b) the Foundation has at any time passed a resolution that —

(i) specifies the member, the interest and the matter; and

(ii) states that the members voting for the resolution are satisfied that the interest is so trivial or insignificant as to be unlikely to influence the disclosing member’s conduct and should not disqualify the member from considering or voting on the matter.

33. Quorum where section 31 applies

(1) Despite section 20, if a member is disqualified under section 31 in relation to a matter, a quorum is present during the consideration of the matter if at least 3 members are present who are entitled to vote on any motion that may be moved at the meeting in relation to the matter.

(2) The Minister may deal with a matter to the extent that the Foundation cannot deal with it because of subsection (1).

Division 5 — Execution of documents

34. Execution of documents by Foundation

(1) The Foundation must have a common seal.

(2) A document is duly executed by the Foundation if —

(a) the common seal of the Foundation is affixed to it in accordance with subsections (3) and (4); or

(b) it is signed on behalf of the Foundation by a person or persons authorised to do so under subsection (5).

(3) The common seal of the Foundation must not be affixed to any document except as authorised by the Foundation.

(4) The common seal of the Foundation must be affixed to a document in the presence of one of its members who must sign the document to attest that the common seal was so affixed.

(5) The Foundation may, by writing under its common seal, authorise one or more of its members or the CEO or any other staff member to sign documents on behalf of the Foundation, either generally or subject to the conditions that are specified in the authorisation.

(6) A document purporting to be executed in accordance with this section must to be presumed to be duly executed until the contrary is shown.

(7) When a document is produced bearing a seal purporting to be the common seal of the Foundation, it must be presumed that the seal is the common seal of the Foundation until the contrary is shown.

Part 4 — Staff

35. Chief executive officer

(1) A chief executive officer of the Foundation is to be appointed under the Public Sector Management Act 1994 Part 3.

(2) The chief executive officer is to administer the day‑to‑day operations of the Foundation subject to the control of the Foundation.

36. Other staff

(1) Public service officers may be appointed under the Public Sector Management Act 1994 Part 3 to enable the Foundation to perform its functions.

(2) Subsection (1) does not affect the power that the Public Sector Management Act 1994 section 100 gives the employing authority of the Foundation to engage a person under a contract for services or appoint a person on a casual employment basis.

37. Contracts for services

(1) The Foundation may engage a person to perform services for the purposes of this Act under a contract for services on the terms and conditions (including as to remuneration) that the Foundation thinks fit.

(2) A person engaged under subsection (1) is not a person appointed under the Public Sector Management Act 1994 Part 3.

38. Use of other government staff and facilities

(1) The Foundation may by arrangement with the relevant employing authority make use, either full‑time or part‑time, of the services of any officer or employee —

(a) in the Public Service; or

(b) in a State agency; or

(2) The Foundation may by arrangement with —

(a) a department of the Public Service; or

(b) a State agency,

make use of any facilities of the department or agency.

(3) An arrangement under subsection (1) or (2) must be made on the terms agreed to by the parties.

Part 5 — Accountability

39. Minister may give directions

(1) The Minister may give written directions to the Foundation with respect to the performance of its functions, either generally or in relation to a particular matter, and the Foundation must give effect to any such direction.

(2) The Minister must not under subsection (1) direct the Foundation with respect to the provision of funds or grants under this Act.

(3) The Minister must cause the text of any direction under subsection (1) to be laid before each House of Parliament, or dealt with under section 48, within 14 days after the direction is given.

(4) The text of a direction under subsection (1) must be included in the annual report submitted by the accountable authority of the Foundation under the Financial Management Act 2006 Part 5.

40. Minister to have access to information

(1) In this section —

document includes any tape, disk or other device or medium on which information is recorded or stored;

information means information specified, or of a description specified, by the Minister that relates to the functions of the Foundation.

(2) The Minister is entitled —

(a) to have information in the possession of the Foundation; and

(b) where the information is in or on a document, to have, and make and retain copies of, that document.

(3) For the purposes of subsection (2) the Minister may —

(a) request the Foundation to furnish information to the Minister; or

(b) request the Foundation to give the Minister access to information; or

(4) The Foundation must comply with a request under subsection (3).

Part 6 — Financial provisions

41. Application of Financial Management Act 2006 and Auditor General Act 2006

The provisions of the Financial Management Act 2006 and the Auditor General Act 2006 regulating the financial administration, audit and reporting of statutory authorities apply to and in respect of the Foundation and its operations.

42. Western Australian Health Promotion Account

(1) An account called the Western Australian Health Promotion Account is established as an agency special purpose account under the Financial Management Act 2006 section 16.

(2) Money received by the Foundation must be credited to, and money paid by the Foundation must be debited to, the Account.

43. Foundation’s funds and expenditure

(1) The funds available for the purpose of enabling the Foundation to perform its functions consist of money that is lawfully received by, or made available to, the Foundation.

(2) In respect of each financial year, the prescribed amount must be paid to the Foundation, and the Consolidated Account is appropriated accordingly.

(3) The Foundation must not decide or announce any decision to disburse any part of the Account, under section 8(2)(a), during —

(a) the period from the issue of the writ for a general election, whether State or Federal, to be held within the State until the close of voting in that election; or

(b) the period from the issue of the writ for an election in relation to a vacancy, whether State or Federal, to be held within the State until the close of voting in that election, if the decision relates to the division or district in respect of which that election is to be held.

(4) The Foundation must endeavour to ensure that, in each financial year —

(a) not less than 30% of the money paid under subsection (2) in any one financial year is disbursed to sporting organisations which the Foundation is satisfied are promoting, or will promote, the object of this Act; and

(b) not less than 15% of the money paid under subsection (2) in any one financial year is disbursed to arts organisations which the Foundation is satisfied are promoting, or will promote, the object of this Act; and

(c) not more than 50% of the money paid under subsection (2) in any one financial year is disbursed to any one of the following kinds of organisations which the Foundation is satisfied are promoting, or will promote, the object of this Act —

(i) sporting organisations;

(ii) arts organisations;

(iii) health organisations;

(iv) community organisations;

(v) research organisations;

(vi) racing organisations.

(5) A decision of the Foundation to disburse any money from the Account must be approved by the Minister before the money is disbursed.

(6) All money standing to the credit of the Account immediately before the commencement of a financial year must, subject to section 42(2), remain in and standing to the credit of the Account after that commencement.

(7) The Foundation must endeavour to commit the funds received from the State by it to the object of this Act within the year they are received or reasonably soon thereafter and must include in its annual report the reason for any amount of those funds remaining not so committed beyond that year.

(8) Any amount of funds received by the Foundation from the State which have not been committed to the object of this Act within 4 months of the end of the financial year for which they have been allocated or 4 months of receipt if received outside the financial year are to be returned to the Consolidated Account.

44. Notice of financial difficulty

(1) The Foundation must notify the Minister if it forms the opinion that the Foundation is unable to, or will be unlikely to be able to, satisfy any of its financial obligations from the financial resources available to it or likely to be available to it at the time the financial obligation is due.

(2) The notice must be in writing, giving reasons for the Foundation’s opinion.

(3) Within 7 days after receipt of the notice, the Minister must —

(a) confer with the Treasurer and the Foundation for the purpose of determining what action is required to ensure that the Foundation is able to satisfy the relevant financial obligation when it is due; and

(b) initiate such action as is required to ensure that the Foundation is able to satisfy the relevant financial obligation when it is due.

Part 7 — Miscellaneous

45. Protection from liability for wrongdoing

(1) An action in tort does not lie against a person for anything that the person has done, in good faith, in the performance or purported performance of a function under this Act.

(2) The protection given by this section applies even though the thing done as described in subsection (1) may have been capable of being done whether or not this Act had been enacted.

(3) Despite subsection (1), neither the Foundation nor the State is relieved of any liability that it might have for another person having done anything as described in that subsection.

(4) In this section, a reference to the doing of anything includes a reference to an omission to do anything.

46. Confidentiality of information

(1) A person must not record, disclose or make use of any information obtained by reason of a function that the person has, or at any time had, in the administration of this Act except —

(a) for the purpose of performing a function under this Act; or

(b) as required or allowed by this Act or under another written law; or

(d) with the written consent of the person to whom the information relates; or

(e) in prescribed circumstances.

Penalty: a fine of $10 000 and imprisonment for 12 months.

(2) Subsection (1) does not apply to the recording, disclosure or use of statistical or other information that could not reasonably be expected to lead to the identification of any person to whom it relates.

47. Regulations

The Governor may make regulations prescribing matters —

(a) required or permitted by this Act to be prescribed; or

(b) necessary or convenient to be prescribed for giving effect to this Act.

48. Laying documents before House of Parliament not sitting

(1) If a provision of this Act requires the Minister to cause a document to be laid before each House of Parliament or be dealt with under this section within a period and —

(a) when the Minister is ready to act, a House of Parliament is not sitting; and

(b) the Minister is of the opinion that the House will not sit during that period,

the Minister must transmit a copy of the document to the Clerk of that House.

(2) A copy of a document transmitted to the Clerk of a House must be taken to have been laid before that House.

(3) The laying of a copy of a document that, under subsection (2), is taken to have occurred must be recorded in the Minutes, or Votes and Proceedings, of the House on the first sitting day of the House after the Clerk received the copy.

49. Review of Act

(1) The Minister must review the operation and effectiveness of this Act as soon as is practicable after —

(a) the expiry of 5 years from the day on which Part 2 comes into operation; and

(b) every fifth anniversary of that day.

(2) The Minister must, as soon as is practicable after completion of the review —

(a) prepare a report about the outcome of the review; and

(b) cause a copy of the report to be laid before each House of Parliament or dealt with under section 48.

Part 8 — Consequential amendments to other Acts

Division 1 — Constitution Acts Amendment Act 1899 amended

50. Act amended

This Division amends the Constitution Acts Amendment Act 1899.

51. Schedule V amended

In Schedule V Part 3 in the item relating to the Western Australian Health Promotion Foundation delete “Tobacco Products Control Act 2006.” and insert:

	*Western Australian Health Promotion Foundation Act 2016*.

Division 2 — Public Sector Management Act 1994 amended

52. Act amended

This Division amends the Public Sector Management Act 1994.

53. Schedule 2 amended

In Schedule 2 after item 58 insert:

59A.	Western Australian Health Promotion Foundation, under the Western Australian Health Promotion Foundation Act 2016

Division 3 — Tobacco Products Control Act 2006 amended

54. Act amended

This Division amends the Tobacco Products Control Act 2006.

55. Section 3 replaced

Delete section 3 and insert:

Purposes of Act

The purposes of this Act are to reduce the incidence of illness and death related to the use of tobacco products —

(a) by prohibiting the supply of tobacco products and smoking implements to young persons; and

(b) by discouraging the use of tobacco products; and

(d) by reducing the exposure of people to tobacco smoke from tobacco products that are smoked by other people.

56. Part 5 heading replaced

Delete the heading to Part 5 and insert:

Part 5 — Administration

57. Part 5 Divisions 1 to 3 deleted

Delete Part 5 Divisions 1, 2 and 3.

58. Part 5 Division 4 heading deleted

Delete the heading to Part 5 Division 4.

59. Section 122 deleted

Delete section 122.

60. Section 124A amended

In section 124A(2) delete “or the Foundation has under this Act.” and insert:

has under this Act or the Foundation has under the Western Australian Health Promotion Foundation Act 2016.

61. Section 126 deleted

Delete section 126.

62. Schedule 1 deleted

Delete Schedule 1.

63. Schedule 2 deleted

Delete Schedule 2.

64. Glossary amended

(1) In the Glossary delete the definitions of:

Account

chairperson

committee

executive director

member

racing

sporting

(2) In the Glossary in the definition of Foundation delete “established by section 59;” and insert:

mentioned in the Western Australian Health Promotion Foundation Act 2016 section 5;

Part 9 — Transitional provisions

65. Terms used

In this Part —

TPC Act Account means the Account as defined in the Tobacco Products Control Act 2006 Glossary immediately before transition day;

TPC Act Foundation means the Foundation as defined in the Tobacco Products Control Act 2006 Glossary immediately before transition day;

transition day means the day on which Part 8 Division 3 comes into operation.

66. Interpretation Act 1984 not affected

Except to the extent this Part expressly provides differently, the Interpretation Act 1984 applies in relation to the repeal of an enactment by Part 8 Division 3.

67. Foundation continues

(1) The Foundation as defined in section 3 is a continuation of, and the same legal entity as, the TPC Act Foundation and on and after transition day —

(a) the assets, rights and liabilities of or in relation to the TPC Act Foundation continue as assets, rights and liabilities of or in relation to the Foundation as defined in section 3; and

(b) any proceedings that immediately before that day might have been brought or continued by the TPC Act Foundation may be brought or continued by the Foundation as defined in section 3; and

(c) any remedy that immediately before that day is available against or to the TPC Act Foundation is available against or to the Foundation as defined in section 3.

(2) On and after transition day, any agreement, instrument or other document that contains a reference to the TPC Act Foundation has effect as if the reference were to the Foundation as defined in section 3, unless the context otherwise requires.

68. Members cease to hold office on transition day

A person who, immediately before transition day, was a member of the TPC Act Foundation ceases to be a member on transition day.

69. First Foundation members under this Act

Four of the members of the Foundation as first constituted under this Act are to hold office for the term, not exceeding 18 months, that is specified in the member’s instrument of appointment.

70. First CEO under this Act

(1) A person who, immediately before transition day, was the executive director of the Foundation under the Tobacco Products Control Act 2006 section 69(1) must, on and after transition day, be taken to be the CEO.

(2) The person holds office for the period, beginning on transition day, that is equal to the balance of the person’s term of office remaining under the Tobacco Products Control Act 2006 immediately before transition day.

(3) Subsection (1) does not apply to a person appointed to act as the executive director.

71. Other employees of Foundation

(1) A person who, immediately before transition day, was an employee of the Foundation under the Tobacco Products Control Act 2006 section 69(1) must, on and after transition day, be taken to be a public service officer employed in the Foundation.

(2) Subsection (1) —

(a) does not apply to a person who, immediately before transition day, was the executive director of the Foundation; but

(b) applies to a person who, immediately before transition day, was acting as the executive director.

72. Preservation of employee rights

(1) In this section —

existing employee means a person to whom section 70(1) or 71(1) applies.

(2) Except as otherwise agreed by an existing employee, the operation of section 70(1) or 71(1) does not —

(a) affect the employee’s pay as defined in the Public Sector Management (Redeployment and Redundancy) Regulations 2014 regulation 3(1); or

(b) affect the employee’s other conditions of service; or

(c) affect the employee’s existing or accruing rights in respect of annual leave, long service leave, sick leave or any other leave, which are enforceable against the Foundation or the State; or

(d) affect any rights under a superannuation scheme; or

(e) interrupt the continuity of the employee’s service with the Foundation.

73. People engaged to provide assistance

The repeal or amendment of an enactment by Part 8 or the enactment of this Act does not operate to affect any contract or arrangement that is in effect under the Tobacco Products Control Act 2006 section 69(2) immediately before transition day.

74. Western Australian Health Promotion Account

(1) On and after transition day, the TPC Act Account must be taken to be the Account as defined in section 3.

(2) Money payable to the TPC Act Account before transition day must, on and after transition day, be credited to the Account as defined in section 3.

(3) The Account as defined in section 3 is charged with any liabilities of the TPC Act Account which arose before transition day.

(4) On and after transition day, any agreement, instrument or other document that contains a reference to the TPC Act Account has effect as if the reference were to the Account as defined in section 3, unless the context otherwise requires.

75. Investments

(1) The investment of any money that was authorised under the Tobacco Products Control Act 2006 section 72 immediately before transition day continues to be authorised on and after transition day as if that section had not been deleted.

(2) Interest from the invested money, and any money that ceases to be invested, must be credited to the Account as defined in section 3.

76. Exemption from State tax

(1) In this section —

State tax includes duty chargeable under the Duties Act 2008 and any other tax, duty, fee, levy or charge, under a law of the State.

(2) State tax is not payable in relation to —

(a) anything that occurs by operation of this Part; or

(b) anything done (including a transaction entered into or an instrument or document of any kind made, executed, lodged or given) under this Part, or to give effect to this Part, or for a purpose connected with or arising out of giving effect to this Part.

77. Transitional regulations

(1) In this section —

publication day, for regulations made under subsection (2), means the day on which those regulations are published in the Gazette;

specified means specified or described in regulations made under subsection (2);

transitional matter —

(a) means a matter or issue of a transitional nature that arises as a result of a repeal or amendment by Part 8 or the enactment of this Act; and

(b) includes a saving or application matter.

(2) If there is no sufficient provision in this Part for dealing with a transitional matter, the Governor may make regulations prescribing matters —

(a) required to be prescribed for the purpose of dealing with the transitional matter; or

(b) necessary or convenient to be prescribed for the purpose of dealing with the transitional matter.

(3) Regulations made under subsection (2) may provide that specified provisions of this Act —

(a) do not apply to or in relation to a specified matter; or

(b) apply with specified modifications to or in relation to a specified matter.

(4) If regulations made under subsection (2) provide that a specified state of affairs must be taken to have existed, or not to have existed, on and after a day that is earlier than publication day for those regulations but not earlier than transition day, the regulations have effect according to their terms.

(5) If regulations made under subsection (2) contain a provision referred to in subsection (4), the provision does not operate so as —

(a) to affect in a manner prejudicial to a person (other than the State or an authority of the State) the rights of that person existing before publication day for those regulations; or

(b) to impose liabilities on a person (other than the State or an authority of the State) in respect of an act done or omission made before publication day for those regulations.

(6) Regulations can be made under subsection (2) only within 24 months after the day on which this Act receives the Royal Assent.

dline

Notes

1 This is a compilation of the Western Australian Health Promotion Foundation Act 2016. The following table contains information about that Act.

Compilation table

Short title	Number and year	Assent	Commencement
Western Australian Health Promotion Foundation Act 2016	3 of 2016	21 Mar 2016	Pt. 1: 21 Mar 2016 (see s. 2(a)); Act other than Pt. 1: 1 Sep 2016 (see s. 2(b) and Gazette 26 Jul 2016 p. 3145)

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)

Account 3

CEO 3

committee 3

document 40(1)

existing employee 72(1)

Foundation 3

information 40(1)

member 3, 29

misconduct 15(1)

presiding member 3

publication day 77(1)

racing 3

specified 77(1)

sporting 3

staff member 3

State tax 76(1)

TPC Act Account 65

TPC Act Foundation 65

transition day 65

transitional matter 77(1)

unable to act 10

Western Australia

Western Australian Health Promotion Foundation Act 2016

Western Australia

Western Australian Health Promotion Foundation Act 2016

Contents

Part 1 — Preliminary

Short title 2
Commencement 2
Terms used 2
Object of Act 3

Part 2 — Western Australian Health Promotion Foundation

Division 1 — The Foundation

Foundation established 4
Status of Foundation 4

Division 2 — Functions of Foundation

Functions 4
Powers 5
Delegation by Foundation 6

Part 3 — Administration of Foundation

Division 1 — How Foundation is constituted

Term used: unable to act 8
Foundation membership, presiding member 8
Deputy presiding member 9
Remuneration and allowances 9
Term of office 9
Casual vacancies 9
Extension of term of office during vacancy 10
Leave of absence 11
Alternate members 11

Division 2 — Foundation meetings

Holding meetings 11
Quorum 11
Presiding member 12
Procedure at meetings 12
Holding meetings remotely 12
Voting 12
Resolution without meeting 12
Minutes to be kept 12

Division 3 — Committees

Committees 13
Remuneration and allowances 13

Division 4 — Disclosure of interests

Term used: member 13

Understanding the operation of this Act requires a precise grasp of several distinct statutory concepts that dictate how public funds are managed, restricted, and monitored.

The Foundation and its Agency Status

Established under section 5, the Foundation is not an independent statutory authority operating at arm's length from the government. It is an agent of the State (section 6(1)). This status means its liabilities are ultimately liabilities of the Crown, and it enjoys State immunities. Because it is an SES organisation under the Public Sector Management Act 1994, its administrative structure is bound directly to the public service, and its staff are subject to public sector standards and employment frameworks.

The Western Australian Health Promotion Account

Managed under section 42, this is established as an agency special purpose account under section 16 of the Financial Management Act 2006. The Account acts as the exclusive financial conduit for the Foundation. All revenues, including the annual statutory appropriation from the Consolidated Account, private donations, grants, and commercial marketing revenues, must be credited to this Account. Conversely, all operational costs and grant disbursements must be debited from it.

Sporting versus Racing

The Act draws a sharp statutory distinction between "sporting" and "racing" activities. Section 3 defines "sporting" to include recreational and other such activities, but explicitly excludes "racing". "Racing" is separately defined as horse racing or pacing, dog racing, motor car racing, or motorcycle racing. This distinction is economically significant because it prevents racing organisations from claiming funds under the mandatory statutory quotas allocated to sporting organisations under section 43(4).

Earmarked Funding Quotas

The Act mandates rigid funding ratios under section 43(4). In each financial year, the Foundation must endeavour to disburse at least 30 percent of its state-allocated funds to sporting organisations, and at least 15 percent to arts organisations. Conversely, it must not disburse more than 50 percent of those funds to any single category of recipient (sporting, arts, health, community, research, or racing). This structure creates a statutory tension between health-based merit assessments and rigid category-based funding minimums.

The Electoral Blackout Period

Section 43(3) introduces a strict political neutrality mechanism. The Foundation is legally barred from deciding or announcing any disbursement of funds during the period running from the issue of a writ for a State or Federal election until the close of voting. If the election is a by-election for a single vacancy, the blackout applies to any decision that specifically relates to the corresponding electoral division or district.

The State Clawback Mechanism

Sections 43(7) and 43(8) establish a rigid temporal limit on state funding. The Foundation must endeavour to commit state-allocated funds within the year of receipt. Any funds that remain uncommitted four months after the end of the financial year (or four months after receipt, if received outside the financial year) must be returned to the Consolidated Account. This clawback prevents the hoarding of cash reserves and forces the Foundation to maintain a continuous, rapid disbursement cycle.

The Western Australian Health Promotion Foundation Act 2016 directly impacts several public and private stakeholders, altering their legal rights, financial opportunities, and compliance obligations.

Grant Seekers and Recipient Organisations

The primary external parties affected by this Act are third-party entities seeking state funding. These include sporting clubs, arts associations, medical research institutes, local community groups, youth organisations, and racing bodies. Because the Act enforces strict minimum disbursement quotas (at least 30 percent to sports and 15 percent to arts), organisations in these categories enjoy a structurally protected pool of capital. However, these groups are also subject to severe compliance and reputational trade-offs. To secure and maintain funding, they must align their core operations with state-defined "health promotion programmes" (section 7(1)(b)). This alignment often requires them to abandon traditional commercial sponsorship arrangements, such as those with alcohol, fast food, or gambling brands, in favour of government-backed health messaging.

Board Members and Committee Appointees

The seven members of the Foundation board appointed under section 11, alongside any committee members appointed under section 27, face a highly regulated governance environment. Board members must satisfy specific expertise requirements across health, sport, the arts, finance, governance, law, management, or marketing. They are subject to strict casual vacancy triggers under section 15, including bankruptcy and criminal convictions. Furthermore, the Act explicitly mandates the inclusion of "sufficient country representatives" on its advisory committees (section 27(2)), forcing the board to actively recruit and accommodate regional advocates within its advisory structures.

Executive Government and the Bureaucracy

The Minister for Health, the Premier, and the Treasurer hold significant direct powers under the Act. The Premier controls the appointment of the presiding member via a mandatory nomination process that requires prior consultation with the parliamentary leader of each political party represented in Parliament (section 11(3)-(4)). The Minister holds ultimate control over the Foundation's capital via the section 43(5) veto power over all disbursements, alongside the power to issue binding written directions under section 39. Public sector employees working within the Foundation are governed by public service terms under Part 4, while the legacy executives and staff transitioning from the previous legislative regime under Part 9 are subject to preserved wage and condition protections.

The Act establishes a reciprocal matrix of statutory duties and rights that constrain how the Foundation, the board, and the executive government operate.

Duties of the Foundation and the Board

The board's primary duty is to govern the Foundation's day-to-day operations and execute its statutory functions under section 7. However, this power is bounded by a series of mandatory administrative duties:

The Quota Duty: Under section 43(4), the board must actively manage its annual grant pipeline to ensure that the 30 percent sporting, 15 percent arts, and 50 percent single-category limits are strictly maintained.
The Duty to Disclose Interests: Under section 30, any board or committee member who has a material personal interest in a matter being considered must disclose the nature of that interest as soon as they become aware of it.
The Duty of Abstention: Under section 31, an interested member must not vote on, or be present during the consideration of, any matter in which they hold a material personal interest.
The Financial Distress Duty: Under section 44, the board is under a strict duty to immediately notify the Minister in writing, giving detailed reasons, if it believes the Foundation is unlikely to meet its financial obligations as they fall due.
The Reporting and Audit Duty: Under section 41, the board must submit the Foundation's accounts to the Auditor General and prepare annual reports in compliance with the Financial Management Act 2006.

Rights of the Foundation

The Foundation holds several corporate and proprietary rights necessary to execute its functions:

The Right to Contract and Hold Property: Under section 8(2)(c), the Foundation has the right to acquire, hold, deal with, and dispose of real and personal property in its own corporate name.
The Right to Delegate: Under section 9, the Foundation has the right to delegate its powers or duties to a member, the CEO, a staff member, or a committee. However, this right is restricted; it cannot delegate the power to approve grant disbursements exceeding $5,000. Any delegation of grant-making power under $5,000 must be directed exclusively to the CEO or a committee and cannot be further delegated.

Rights of the Executive Government (The Minister)

The Minister holds extensive rights of oversight and intervention that limit the Foundation's autonomy:

The Right of Access: Under section 40, the Minister has an absolute right to access any information or document in the possession of the Foundation. This includes the right to request copies of documents and to command the assistance of staff members to obtain such information.
The Right of Veto: Under section 43(5), the Minister has the absolute right to approve or reject any disbursement decision made by the Foundation. No grant money can lawfully leave the Western Australian Health Promotion Account without prior ministerial sign-off.
The Right of Direction: Under section 39, the Minister has the right to issue binding written directions to the Foundation regarding the performance of its functions, provided these directions do not target the funding of a specific grant applicant.

The Act contains targeted criminal and administrative enforcement mechanisms designed to prevent corruption, maintain financial discipline, and enforce strict public sector standards.

Criminal Penalties

The Act outlines specific criminal offences that carry significant financial and custodial penalties:

Failure to Disclose Material Personal Interests (Section 30(1)): A board or committee member who fails to disclose a material personal interest in a matter under consideration by the Foundation commits an offence. The maximum penalty is a fine of $10,000. This offence also carries a automatic administrative penalty under section 15(2)(d), which states that any member convicted of a section 30(1) offence immediately forfeits their seat on the board.
Breach of Confidentiality (Section 46(1)): Any person who records, discloses, or makes use of information obtained through their statutory role in the administration of the Act commits a serious offence. The maximum penalty is a fine of $10,000 and imprisonment for 12 months. This strict prohibition is designed to prevent insider knowledge regarding grant distributions, commercial marketing strategies, or sensitive organizational data. However, prosecution is barred if the disclosure falls under statutory exceptions, such as performing official duties, court proceedings, written consent, or anonymised statistical reporting (section 46(1)(a)-(e) and section 46(2)).

Administrative Enforcement and Dismissal Powers

Beyond criminal prosecution, the Act provides the Minister with powerful administrative enforcement levers:

Removal of Board Members (Section 15(4)): The Minister has the power to unilaterally dismiss any board member on several broad grounds. These grounds include neglect of duty, incompetence, mental or physical incapacity, or absence without leave from three consecutive meetings.
Broad Definition of Misconduct (Section 15(1)): For the purposes of dismissal, "misconduct" is defined to include off-duty conduct that renders a member unfit to hold office, even if the conduct has no direct relation to their official duties under the Act.
Automatic Vacancy for Serious Criminality (Section 15(2)(c)): A member's office is automatically vacated if they are convicted of any offence punishable by imprisonment for more than 12 months, regardless of whether a custodial sentence is actually imposed.

Financial Oversight

The primary mechanism for enforcing financial discipline is the application of the Financial Management Act 2006 and the Auditor General Act 2006 (section 41). If the Foundation fails to comply with its financial administration duties, the Auditor General can issue a qualified audit opinion, triggering parliamentary scrutiny and mandatory corrective action under the public accounts framework.

The Western Australian Health Promotion Foundation Act 2016 is deeply integrated into the broader Western Australian statutory landscape, relying on, amending, and modifying several other pieces of legislation.

The Tobacco Products Control Act 2006

The primary legislative interaction of this Act is the decoupling and amendment of the Tobacco Products Control Act 2006. Part 8 Division 3 of the 2016 Act systematically strips the Foundation's establishment, governance, and financial provisions out of the Tobacco Act. Specifically, it deletes Part 5 Divisions 1, 2, and 3, deletes Schedules 1 and 2, and replaces the overarching purpose of the Tobacco Act (section 3) to focus strictly on tobacco supply, restriction, and exposure reduction. The definition of the "Foundation" in the Tobacco Act Glossary is amended to point directly to the 2016 Act. This ensures that while the Foundation remains a distinct legal entity, its primary funding is no longer legally tied to tobacco-licensing revenues or direct tobacco-control enforcement.

The Public Sector Management Act 1994

The Foundation is formally designated as a Senior Executive Service (SES) organisation under Schedule 2 of the Public Sector Management Act 1994 (as amended by section 53 of the 2016 Act). This designation means that the Foundation's Chief Executive Officer must be appointed under Part 3 of the Public Sector Management Act (section 35(1)). Day-to-day staff and public service officers are similarly hired under the public service framework (section 36). Any casual appointments or contracts for services engaged by the employing authority must comply with the standard operating parameters of section 100 of the Public Sector Management Act.

The Financial Management Act 2006 and Auditor General Act 2006

Under section 41, these Acts govern the entirety of the Foundation's financial accountability. The Western Australian Health Promotion Account is formally designated as an "agency special purpose account" under section 16 of the Financial Management Act 2006. This status subjects the Foundation's funds to rigorous accounting standards, and any non-committed funds clawed back under section 43(8) must be returned directly to the Consolidated Account, which is regulated by the same financial frameworks.

The Constitution Acts Amendment Act 1899

Section 51 amends Schedule V Part 3 of the Constitution Acts Amendment Act 1899. It replaces the legacy reference to the Tobacco Products Control Act 2006 with the Western Australian Health Promotion Foundation Act 2016. The mechanical effect of this amendment is that any person appointed as a member of the Foundation is disqualified from being elected to, or sitting as a member of, the Legislative Council or the Legislative Assembly of Western Australia.

The Interpretation Act 1984

The Act interacts with the Interpretation Act 1984 in two ways. First, section 15(2)(b) uses section 13D of the Interpretation Act to determine whether a board member is bankrupt or subject to insolvency laws for the purposes of declaring a casual vacancy. Second, section 66 of the Act explicitly preserves the operation of the Interpretation Act in relation to the transitional provisions and the repeal of enactments under Part 8 Division 3.

The Western Australian Health Promotion Foundation Act 2016 was introduced into the Parliament of Western Australia as Bill No. 121 of 2015. It was passed and enacted as Act No. 3 of 2016, receiving the Royal Assent on 21 March 2016.

Under the commencement provisions set out in section 2:

Part 1 (consisting of sections 1 to 4, detailing the short title, commencement, definitions, and object of the Act) came into operation immediately on the day of Royal Assent (21 March 2016).
The remainder of the Act, including the core operational, administrative, financial, and consequential amendment provisions, came into operation on 1 September 2016, as fixed by executive proclamation published in the Government Gazette on 26 July 2016 (p. 3145).

Upon its commencement on 1 September 2016, the consequential amendments detailed in Part 8 were immediately executed. This resulted in the instant deletion of Part 5 Divisions 1 to 3 and Schedules 1 and 2 of the Tobacco Products Control Act 2006, alongside the immediate update of the disqualification schedules in the Constitution Acts Amendment Act 1899 and the agency lists in the Public Sector Management Act 1994.

Since its formal commencement, the Act has remained structurally stable. A review of the compilation history and Western Australian legislative registers indicates that the Act has not been subjected to further substantive direct amendments by subsequent parliaments. It remains in force in substantially the same form as enacted in 2016, continuing to govern the operations of the body corporately known as the Western Australian Health Promotion Foundation. Under section 49, the Minister is required to carry out a formal review of the operation and effectiveness of the Act every five years, with the corresponding reports laid before each House of Parliament.

Because the Western Australian Health Promotion Foundation Act 2016 is primarily an administrative and funding statute, its provisions have not been the subject of extensive, high-profile litigation in the superior courts of Western Australia. The statutory text itself does not name or refer to any specific judicial decisions or common law cases.

This absence of direct litigation history can be explained by several structural features of the Act that insulate the Foundation and the State from legal challenges:

Tort Immunity: Section 45 provides broad protection from civil liability. It explicitly states that an action in tort does not lie against any person for anything done, or omitted to be done, in good faith during the performance or purported performance of a function under the Act. This high bar effectively shields individual board members, the CEO, and staff from personal liability.
Absolute Ministerial Discretion over Disbursements: Under section 43(5), the Minister must approve all disbursements. This creates a statutory double-key system where a disappointed grant applicant has no clear legal "right" to funding. Because the allocation of grants is discretionary, court challenges by unsuccessful applicants are highly difficult to mount, as there is no statutory entitlement to a grant.
Absence of Private Prosecution Provisions: The enforcement of the Act, including prosecution for failure to disclose material interests under section 30 or breaches of confidentiality under section 46, is handled through public prosecution channels. This prevents private litigants from utilizing the Act to initiate proceedings.
Administrative Resolutions: Disputes regarding funding, compliance with public sector standards, or board vacancies are resolved internally through the ministerial direction powers under section 39 or public sector grievance procedures, rather than through public judicial review.

For legal practitioners, accountants, and compliance officers, the Act contains several statutory traps and operational constraints that can disrupt compliance programs if not carefully monitored.

The Absolute Ministerial Veto

A major structural trap is the illusion of board autonomy. While the board has the statutory power to make grants under section 8(2)(a), section 43(5) imposes an absolute barrier: "A decision of the Foundation to disburse any money from the Account must be approved by the Minister before the money is disbursed." This means that even if an organisation successfully passes the Foundation’s rigorous internal evaluation, has a signed agreement, and is announced as a recipient, the grant is legally invalid and cannot be paid until the Minister has formally signed off. Compliance officers must ensure that no binding financial commitments are made with third parties before this ministerial approval is secured in writing.

The Four-Month Clawback Cliff

Under section 43(8), any state-allocated funds that are not formally "committed to the object of this Act" within four months of the end of the financial year (or four months of receipt) are automatically clawed back and must be returned to the Consolidated Account. This rule creates a critical operational risk. If the Foundation's internal approval processes, or the Minister's sign-off, are delayed past the four-month window, those funds are lost. For accountants and financial planners, this cliff requires a highly active tracking system to distinguish between "allocated" funds and legally "committed" funds to prevent the unexpected loss of capital.

The Federal or State Election Blackout Lockout

Section 43(3) strictly prohibits the Foundation from deciding or announcing any disbursement of funds during an election writ period. The trap lies in the scope of this provision: it applies to both State and Federal general elections, and even to single-district by-elections. Under section 43(3)(b), if a federal by-election is called for a single seat in Western Australia, the Foundation is barred from announcing or making any funding decisions that relate to that specific district or division. Because election writs can be issued unexpectedly, the Foundation must be prepared to immediately freeze all local or statewide funding announcements at short notice to avoid a breach of the Act.

The $5,000 Delegation Ceiling

Under section 9(2), the Foundation is strictly prohibited from delegating its function of determining who receives financial support, or in what amounts, unless the delegation is made to the CEO or a committee, and is capped at $5,000 or less. Any attempt to delegate general grant-making powers above this $5,000 threshold is legally void. This extremely low cap prevents the board from delegating high-volume, mid-tier grant schemes to executive staff, forcing almost all material grant approvals to go through the full board and subsequently the Minister.

The Double-Vote Power of the Presiding Member

Section 24 outlines a significant voting asymmetry during board meetings. Under section 24(1), each member has a single deliberative vote. However, under section 24(2), in the event of an equal division of votes, the presiding member holds a casting vote in addition to their deliberative vote. This double-voting power allows the presiding member to push through contested resolutions or funding allocations even if three of the other six members actively oppose the measure.

The Mandatory "Country Representative" Burden

Section 27(2) dictates that the Foundation must ensure there are "sufficient country representatives" appointed as committee members. The Act does not define "sufficient" or "country representative". This creates an ongoing compliance and recruitment challenge for the board. If a committee is formed without regional members, its advice could be challenged as procedurally defective under the Act, creating administrative and legal vulnerability for the Foundation's decisions.

For organisations, compliance professionals, and legal advisors interacting with the Foundation, maintaining a robust compliance program requires systematic adherence to several strict workflows.

1. Board Conflict of Interest Protocol (Sections 30 & 31)

To prevent a $10,000 fine and automatic forfeiture of office, the board must implement a rigorous, double-layered disclosure system:

The Standing Interest Register: Maintain a comprehensive register of all board and committee members' external affiliations, investments, and professional relationships. This register must be updated quarterly.
Pre-Meeting Review: Prior to every meeting of the Foundation or any of its committees, the corporate secretary must cross-reference the agenda and grant applications against the Standing Interest Register.
Physical Recusal Procedure: If an interest is identified, the member must disclose the interest immediately upon entering the meeting room (section 30(1)). The disclosure must be recorded in the minutes (section 30(2)). The member must physically exit the room before the matter is discussed and cannot vote or participate in any informal lobbying (section 31).
The Section 32 Exception Pathway: If the interest is minor, the remaining board members can pass a formal resolution under section 32 stating that the interest is trivial and should not disqualify the member. This resolution must explicitly name the member, the interest, and the matter, and be recorded in the minutes before the member is allowed to re-enter.

2. Grant Allocation Ratio Audits (Section 43)

Financial officers within the Foundation must establish a real-time allocation ledger that monitors grant distributions against the mandatory statutory minimums and maximums in each financial year:

Sports Minimum Ledger: Ensure that at least 30 percent of the annual state appropriation is continuously allocated to sporting organisations.
Arts Minimum Ledger: Ensure that at least 15 percent of the annual state appropriation is continuously allocated to arts organisations.
The 50 Percent Cap Check: Flag any single-category accumulation (sporting, arts, health, community, research, or racing) that threatens to exceed 50 percent of the annual state appropriation.
Exclusion of Racing from Sports Quotas: Verify that no grant made to a "racing organisation" (as defined under section 3) is counted toward the 30 percent sporting minimum, as racing is strictly excluded from the definition of "sporting".

3. State Clawback and Commitment Tracking (Section 43(8))

To avoid losing allocated capital to the Consolidated Account, the Chief Financial Officer must implement a strict "Commitment Timeline":

Identify the Allocation Date: Track the exact date of receipt of all state funds.
Define "Committed": Establish a clear legal definition of "committed" funds. This requires a fully executed, ministerially approved grant contract with a third party. Mere board approval or a letter of intent does not constitute a "commitment" for the purposes of avoiding clawback.
The Four-Month Alarm: Implement an automated alarm system set at 90 days following the end of the financial year. Any funds from that year's allocation that are not backed by an executed contract must be rushed through final approval or flagged for return to the Consolidated Account within the four-month window.

4. Ministerial Approval and Veto Pipeline (Section 43(5))

Because the board cannot independently disburse funds, the grant administration team must design its grant timelines to accommodate the Minister's veto power:

Incorporate Approval Windows: All grant program calendars must build in a mandatory 30-to-60-day ministerial review window between the board's final recommendation and the scheduled public announcement or contract execution date.
No Premature Disclosures: Ensure that grant application terms and conditions clearly state that any offer of funding is conditional upon, and subject to, formal approval by the Minister under section 43(5) of the Act.

5. Electoral Blackout Monitoring (Section 43(3))

The Foundation's communications and grant administration teams must maintain an "Election Compliance Calendar":

Writ Monitoring: The compliance team must actively monitor the Western Australian Electoral Commission and the Australian Electoral Commission websites for the issuance of any election writs (including by-elections).
Immediate System Lock: Upon the issuance of a writ, the grant management system must be locked, preventing staff from issuing new grant approval letters, releasing public funding announcements, or executing disbursement transactions that violate the section 43(3) blackout. Regular operations may only resume after the close of voting in the relevant election.

Deep Dive

What it does

Current sections