Fire and Emergency Services Superannuation Act 1985 (Western Australia)

This Act creates and governs a dedicated, statutory superannuation vehicle for persons employed for the purposes of the Fire and Emergency Services Act 1998 and certain related classes of persons (the Fire and Emergency Services Superannuation Fund), and establishes a corporate board to administer that Fund (the Fire and Emergency Services Superannuation Board). The Act continues, as the same legal entities, the prior Western Australian Fire Brigades Superannuation Board and Fund (ss 4(1a), 5(1a)). It specifies the composition and internal procedures of the Board (s 4; Schedule 2), the sources of the Fund (s 5(2)), and the permitted uses of Fund assets (s 5(3)). It grants the Board broad powers to administer, invest and manage the Fund (s 6), including trustee powers (s 10), powers to appoint investment managers (s 14), and to effect or maintain insurance in relation to benefits (s 9). The Act requires the Board to appoint an actuary who must conduct actuarial reviews at least once every three years, with reports to the Board and to the FES Commissioner and associated employers (s 16; s 17(1), (3), (4)).

The Act places express limits and duties on how those powers are exercised. The Board and its delegates must act with sole regard to the best interests of the Fund and its members when making investments (s 8). The Board must ensure the Fund complies with Commonwealth superannuation standards and any requirements issued by the Australian Prudential regulator under the relevant Commonwealth Act (defined as the Superannuation Industry (Supervision) Act 1993 or a prescribed replacement) (s 6A). The Board may borrow or raise money but only to address cash flow problems in paying benefits (s 6(4)); it may not lend money from the Fund to a member (s 7(4)). The Fund and Board are subject to Western Australian financial administration and audit provisions by application of the Financial Management Act 2006 and the Auditor General Act 2006 (s 19A).

CrestWestern Australia

Fire and Emergency Services Superannuation Act 1985

Western Australia

Fire and Emergency Services Superannuation Act 1985

Contents

Part I — Preliminary

Short title 2
Commencement 2
Terms used in this Act 2

Part II — The Fire and Emergency Services Superannuation Board and Fund

Establishment and constitution of Superannuation Board 4
The Superannuation Fund 5
Function and general powers of Superannuation Board 6

6A. Compliance with Commonwealth standards 8

Power of investment 8
Investment policy 9
Power to insure 9
Superannuation Board to have powers of a trustee 10
Discretionary exercise of powers 10
Power to make determinations 10
Delegation 11
Appointment of investment managers 11
Appointment of secretary 11
Appointment of actuary 12
Actuarial review 12
Advice to Superannuation Board 12
Records 13

19A. Application of Financial Management Act 2006 and Auditor General Act 2006 13

Accounts 13
Minister to have access to information 14

21A. Confidential information 15

Part IV — Miscellaneous

Employers’ powers and liabilities in respect of termination not affected 16
Members’ rights to compensation not affected 16
General meetings of members of Superannuation Fund 17
Assistance from FES Commissioner 17
Power to make regulations 17

Part V — Amendment, repeal and transitional

Transitional 20

Schedule 1 — Bodies that may be associated employers

Schedule 2 — Provisions as to Superannuation Board

Terms used in this Schedule 22
Elections 22
Terms of office 22
Chairman 23
Publication 23
How vacancies occur 24
Alternate members 24
Meetings of a Board 26
Quorum 26
Performance of functions by resolution 27
Disclosure of interest 27
Common seal 28
Allowances 28
Indemnity 28

Schedule 3 — Transitional provisions

Part I — Superannuation Fund

Terms used in this Part 29
Transfer of assets and liabilities 29
Transfer of operations 29
Claims preserved 30
Interim Board members 30

Part II — Disablement Benefits Fund

Terms used in this Part 30
Transfer of assets and liabilities 30
Transfer of operations 31
Claims preserved 31
Interim Board members 31

Notes

Compilation table 33

Defined terms

Western Australia

Fire and Emergency Services Superannuation Act 1985

An Act to provide superannuation and other benefits for certain persons employed for the purposes of the Fire and Emergency Services Act 1998, for certain former employees of the Fire and Emergency Services Authority of Western Australia and the Western Australian Fire Brigades Board, for the employees, and certain former employees, of other bodies, and for certain other persons, to establish a board and fund for the purpose of providing those benefits, and for incidental and other purposes.

[Long title inserted: No. 26 of 1994 s. 4; amended: No. 42 of 1998 s. 38; No. 38 of 2002 s. 64; No. 22 of 2012 s. 96.]

Part I — Preliminary

1. Short title

This Act may be cited as the Fire and Emergency Services Superannuation Act 1985 1.

[Section 1 amended: No. 38 of 2002 s. 65.]

2. Commencement

This Act shall come into operation on such day as is fixed by proclamation 1.

3. Terms used in this Act

(1) In this Act, unless the contrary intention appears —

associated employee means a person in the employment of an associated employer;

associated employer means a body mentioned in Schedule 1 that is an associated employer under the regulations;

Authority means the Fire and Emergency Services Authority of Western Australia established by section 4 of the Fire and Emergency Services Act 1998, as in force immediately before the coming into operation of the Fire and Emergency Services Legislation Amendment Act 2012 section 7;

Commissioner has the same meaning as in the Commonwealth Act;

Commonwealth Act means —

(a) the Superannuation Industry (Supervision) Act 1993 of the Commonwealth; or

(b) if another Act of the Commonwealth is prescribed for the purposes of this definition, that prescribed Act;

Commonwealth standards means any standards prescribed by or under the Commonwealth Act;

eligible FES employee means a firefighter, or a person holding a prescribed office or of a prescribed class employed in the department principally assisting in the administration of the Fire and Emergency Services Act 1998;

FES Commissioner has the same meaning as in the Fire and Emergency Services Act 1998 section 3;

Fire Brigades Board means the Western Australian Fire Brigades Board constituted under the Fire Brigades Act 1942, as in force immediately before the coming into operation of the Fire and Emergency Services Act 1998;

firefighter means an officer or member of a permanent fire brigade under the Fire Brigades Act 1942 and includes such an officer or member seconded for the time being to another employer;

former Authority employee means a person to whom section 5(4)(a) applied immediately before the coming into operation of the Fire and Emergency Services Legislation Amendment Act 2012 section 99(2);

former Fire Brigades Board employee means a person formerly in the employment of the Fire Brigades Board;

property means real and personal property of any nature and includes —

(a) any estate share or interest in any property;

(b) any thing or chose in action; and

Superannuation Board means the Fire and Emergency Services Superannuation Board established under section 4;

Superannuation Fund means the Fire and Emergency Services Superannuation Fund established under section 5;

the actuary means the actuary appointed under section 16.

(2) The Governor may amend Schedule 1 by order published in the Gazette.

[Section 3 amended: No. 19 of 1992 s. 4; No. 26 of 1994 s. 5; No. 42 of 1998 s. 38; No. 38 of 2002 s. 66; No. 22 of 2012 s. 97.]

Part II — The Fire and Emergency Services Superannuation Board and Fund

[Heading inserted: No. 38 of 2002 s. 67.]

4. Establishment and constitution of Superannuation Board

(1) For the purposes of this Act there shall be a board to be known as the Fire and Emergency Services Superannuation Board.

(1a) The Fire and Emergency Services Superannuation Board is a continuation of, and the same legal entity as, the Western Australian Fire Brigades Superannuation Board established by this section as in force before the commencement of Part 5 of the Fire and Emergency Services Legislation Amendment Act 2002 1.

(2) The Superannuation Board —

(a) is a body corporate;

(b) shall have an official seal; and

(3) All courts, judges and persons acting judicially shall take judicial notice of the seal of the Superannuation Board affixed to a document and shall presume that it was duly affixed.

(4) Subject to this Act the Superannuation Board shall consist of 6 persons of whom —

(a) 3 shall be appointed by the FES Commissioner; and

(b) 3, of whom not less than 2 are members of the Superannuation Fund, shall be elected by the members of the Superannuation Fund.

(5) The FES Commissioner may appoint not more than 3 persons to be alternate members of the Superannuation Board.

(6) The members of the Superannuation Fund may elect not more than 3 persons to be alternate members of the Superannuation Board.

(7) Schedule 2 shall have effect in relation to the Superannuation Board.

[Section 4 amended: No. 26 of 1994 s. 6; No. 42 of 1998 s. 38; No. 38 of 2002 s. 68; No. 22 of 2012 s. 98.]

5. The Superannuation Fund

(1) For the purpose of providing superannuation and other benefits in accordance with this Act there shall be a fund called the Fire and Emergency Services Superannuation Fund.

(1a) The Fire and Emergency Services Superannuation Fund is a continuation of, and the same fund as, the Western Australian Fire Brigades Superannuation Fund established by this section as in force before the commencement of Part 5 of the Fire and Emergency Services Legislation Amendment Act 2002 1.

(2) The Superannuation Fund shall consist of —

(a) contributions paid by members of the Superannuation Fund and by the FES Commissioner and associated employers in respect of such members;

(b) all other property received by the Superannuation Board for or in connection with the Superannuation Fund;

(d) income derived from the investment of the Superannuation Fund; and

(e) accretions to, and profits arising from the realization of, property in which the Superannuation Fund is invested.

(3) The Superannuation Fund shall be available for the payment of —

(a) benefits to or in respect of members of the Superannuation Fund in accordance with this Act;

(b) the costs and expenses of conducting elections in respect of the Superannuation Board under clause 2 of Schedule 2;

(d) the costs and expenses of administering the Superannuation Fund and the provisions of this Act relating to the Superannuation Fund.

(4) Regulations under section 32 may provide for all or any of the following people to be members of the Superannuation Fund —

(a) current and former eligible FES employees; and

(b) current and former associated employees; and

(da) former Authority employees; and

(d) current and former spouses or de facto partners of the persons referred to in paragraphs (a), (b), (c) and (da).

[Section 5 amended: No. 26 of 1994 s. 7; No. 42 of 1998 s. 38; No. 38 of 2002 s. 69; No. 22 of 2012 s. 99.]

6. Function and general powers of Superannuation Board

(1) The function of the Superannuation Board is to administer, invest and manage the Superannuation Fund.

(2) Subject to this Act the Superannuation Board may do all acts and things that are necessary or convenient to be done to enable it to perform its functions.

(3) Without limiting the generality of subsection (2) the Superannuation Board may, subject to this Act —

(a) enter into and execute all deeds, contracts and documents that it may think expedient for the purpose of securing the benefits to be provided from the Superannuation Fund;

(b) appropriate any part of the Superannuation Fund (including the proceeds arising from any insurance or assurance policies) in full or part satisfaction of any duties or taxes;

(d) grant or take options or other pre‑emptive rights for the sale, purchase or leasing of any property;

(e) insure or re‑insure any risks, contingencies or liabilities of the Superannuation Fund, the Superannuation Board, members of the Superannuation Board, or persons provided by the FES Commissioner under section 31 to assist the Superannuation Board, with or through such persons and on such terms and conditions as the Superannuation Board thinks fit;

(f) subject to subsection (4), raise or borrow money at such rates of interest and on such terms and conditions as it thinks fit and either by way of fixed loan for a period of time or by way of bank overdraft on a fluctuating basis;

(g) subject to subsection (4), incur liabilities of such amounts and on such terms and conditions as it thinks fit and provide and set aside out of the Superannuation Fund sufficient money for or towards the discharge or reduction of any encumbrance, debt or other liability affecting any part of the Superannuation Fund;

(h) secure, guarantee, indemnify or support the performance of any obligation undertaken by it by securities of any nature over the whole or any part of the Superannuation Fund;

(i) open and operate on accounts with bankers or other financial institutions and sign, draw, discount, accept and endorse cheques, bills and other negotiable instruments in such manner as it determines;

(j) lease, let out or hire for such periods and at such rentals as it thinks fit any property forming part of the Superannuation Fund;

(k) postpone the realization of any property forming part of the Superannuation Fund for so long as the Superannuation Board thinks fit even though the property may be of a speculative or wasting nature;

(l) expend such amounts in the development and improvement of any property forming part of the Superannuation Fund as the Superannuation Board thinks fit.

(4) The Superannuation Board may raise or borrow money under subsection (1) for the purpose of overcoming any cash flow problem in the payment of benefits under this Act, but for no other purpose.

[Section 6 amended: No. 19 of 1992 s. 5; No. 38 of 2002 s. 70; No. 22 of 2012 s. 100.]

6A. Compliance with Commonwealth standards

(1) The Superannuation Board —

(a) shall ensure that the Superannuation Fund complies with the Commonwealth standards so far as they apply to that Fund;

(b) shall comply with any requirement made in relation to the Superannuation Fund by the Commissioner under the Commonwealth Act;

(c) shall not, in relation to the administration, management or investment of the Superannuation Fund, do anything that is contrary to, or inconsistent with, the Commonwealth standards so far as they apply to the Superannuation Fund.

(2) This section has effect notwithstanding any other provision of this Act.

[Section 6A inserted: No. 19 of 1992 s. 6.]

7. Power of investment

(1) The Superannuation Board may invest the assets of the Superannuation Fund in any form of investment that it considers suitable.

(2) The Superannuation Board may at any time and in its absolute discretion vary or transpose any investments or other applications of the Superannuation Fund for or into others authorised by this Act.

(3) The Superannuation Board may underwrite or sub‑underwrite any of the investments authorised by this Act.

(4) Notwithstanding anything in this section, the Superannuation Board shall not lend any money from the Superannuation Fund to a member of that Fund, either directly or by means of an arrangement for lending money to a member of that Fund in the exercise of a power of investment under this section.

[Section 7 amended: No. 19 of 1992 s. 7; No. 1 of 1997 s. 18; No. 38 of 2002 s. 71.]

8. Investment policy

The Superannuation Board and every delegate of the Superannuation Board who at any time undertakes the investment of all or part of the Superannuation Fund shall have regard only to the best interests of the Superannuation Fund and its members in relation to the making of every such investment.

9. Power to insure

(1) The Superannuation Board may —

(a) subject to the regulations, effect and maintain policies of all types of insurance or assurance to provide for any benefit or part of a benefit that may become payable from the Superannuation Fund; and

(b) pay out of the Superannuation Fund all premiums under or in respect of policies referred to in paragraph (a).

(2) The powers conferred under this section are in addition to and extension of the powers conferred by sections 6 and 7.

(3) In this section effect includes acquire or take by assignment.

[Section 9 amended: No. 26 of 1994 s. 8.]

10. Superannuation Board to have powers of a trustee

Without limiting the generality of section 6 or 7 the Superannuation Board shall have the powers conferred by law on a trustee.

11. Discretionary exercise of powers

Subject to section 8 the powers conferred on the Superannuation Board under this Act or by any other law —

(a) may be exercised by the Superannuation Board in such circumstances, in such manner and on such terms and conditions as the Superannuation Board thinks fit;

(b) may be exercised by the Superannuation Board jointly with any other person and notwithstanding that by doing so the Superannuation Board may lose sole control of any of the investments or other applications of the Superannuation Fund or cause any part of the property of the Superannuation Fund to be intermingled with any other property; and

(c) shall so far as they relate to the investment or other applications of the Superannuation Fund be exercisable by the Superannuation Board as if it were the absolute beneficial owner of the Superannuation Fund.

12. Power to make determinations

The Superannuation Board shall determine all questions or issues of doubt or difficulty in relation to —

(a) the interpretation of any of the provisions of this Act relating to the Superannuation Fund;

(b) the rights of the members of the Superannuation Fund under this Act; or

(c) the management and administration of the Superannuation Fund or the performance of the functions conferred on the Superannuation Board.

13. Delegation

(1) The Superannuation Board may, by instrument in writing delegate to any person any power or duty conferred or imposed on the Superannuation Board under this Act or any other Act.

(2) A power or duty delegated under subsection (1) shall, when exercised or performed by the delegate in accordance with the instrument of delegation, be deemed, for the purposes of this Act, to have been exercised or performed by the Superannuation Board.

14. Appointment of investment managers

(1) The Superannuation Board may appoint a person as an investment manager of the Superannuation Fund and, without limiting the generality of section 13, may delegate to an investment manager so appointed any of its powers and duties under this Act or any other Act as to the investment of the Superannuation Fund.

(2) An investment manager may be appointed on such terms and at such remuneration as the Superannuation Board thinks fit.

(3) The Superannuation Board may cause or permit the title to any property forming part of the Superannuation Fund to be registered in the name of an investment manager in trust.

15. Appointment of secretary

(1) The Superannuation Board shall appoint a secretary of the Superannuation Board.

(2) The secretary shall be appointed on such terms and at such remuneration as the Superannuation Board thinks fit.

(3) The secretary shall perform such duties and have such powers as the Superannuation Board may from time to time determine.

16. Appointment of actuary

(1) The Superannuation Board shall appoint as the actuary to the Superannuation Fund any person who is, or any firm a member of which is, a Fellow of the Institute of Actuaries of Australia or any body formed in reconstruction of or in succession to that Institute.

(2) The actuary shall be appointed on such terms and at such remuneration as the Superannuation Board thinks fit.

17. Actuarial review

(1) On or before the day 3 years after the commencement of this Act and thereafter at intervals of not more than 3 years the Superannuation Board shall call on the actuary to conduct an actuarial review of the Superannuation Fund.

(2) The Superannuation Board shall provide the actuary with such information as he may require to conduct an actuarial review under subsection (1), and shall do so in time to enable the actuary to comply with subsection (3a).

(3) The actuary shall report to the Superannuation Board in writing the result of an actuarial review conducted under subsection (1).

(3a) The report shall be made within the period of 12 months after the date as at which the review was made or within such other period as is prescribed.

(4) The Superannuation Board shall provide the FES Commissioner and each associated employer (if any) with a copy of each report received by the Superannuation Board under subsection (3).

[Section 17 amended: No. 19 of 1992 s. 8; No. 42 of 1998 s. 38; No. 22 of 2012 s. 101.]

18. Advice to Superannuation Board

The Superannuation Board may obtain the advice or opinion of any accountant, actuary, banker, legal practitioner, medical practitioner, stockbroker or other professional person and may act on the advice or opinion of such a person irrespective of whether or not the advice or opinion has been sought by the Superannuation Board.

19. Records

The Superannuation Board shall ensure that a complete record is kept of —

(a) all the members of the Superannuation Fund and all other persons becoming entitled to a benefit from the Superannuation Fund;

(b) the deaths of members of the Superannuation Fund; and

19A. 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 the statutory authorities apply to and in respect of the of the Superannuation Board and its operations.

[Section 19A inserted: No. 4 of 1986 s. 4; amended: No. 77 of 2006 s. 17.]

20. Accounts

(1) In this section liabilities does not include liabilities for the payment of benefits under the Superannuation Fund.

[(2) deleted]

(3) If the receipt or expenditure of money is delegated by the Superannuation Board under section 13 or 14, the Superannuation Board shall procure from the delegate, as soon as practicable after the end of each financial year, a full and true statement of account of all the moneys received and expended by the delegate on behalf of the Superannuation Board during that year and a statement of the assets and liabilities held or incurred by the delegate on behalf of the Superannuation Board as at the end of that year.

[Section 20 amended: No. 4 of 1986 s. 4.]

21. Minister to have access to information

(1) For parliamentary purposes or for the proper conduct of the Minister’s public business, the Minister is entitled —

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

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

(2) For the purposes of subsection (1) the Minister may —

(a) request the Superannuation Board to furnish information to the Minister;

(b) request the Superannuation Board to give the Minister access to information;

(c) for the purposes of paragraph (b) make use of the staff of the Superannuation Board to obtain the information and furnish it to the Minister.

(3) The Superannuation Board shall comply with a request under subsection (2) and make its staff and facilities available to the Minister for the purposes of paragraph (c) of that subsection.

(4) In this section —

document includes any tape, disc or other device or medium on which information is recorded or stored mechanically, photographically, electronically or otherwise;

information means information specified, or of a description specified, by the Minister that relates to the functions or powers of the Board;

parliamentary purposes means the purpose of —

(a) answering a question asked in a House of Parliament; or

(b) complying with a written law, or an order or resolution of a House of Parliament, that requires information to be furnished to a House of Parliament.

[Section 21 inserted: No. 26 of 1994 s. 9.]

21A. Confidential information

(1) Nothing in this Act entitles the Minister to have information in the possession of the Superannuation Board in a form that —

(a) discloses information about a member or a beneficiary; or

(b) might enable information about a member or a beneficiary to be ascertained.

(2) Subsection (1) does not apply where disclosure of the information —

(a) is authorised or required by some other written law; or

(b) is authorised by the member or beneficiary.

(3) In this section —

beneficiary means a person to whom a benefit is payable or has been paid under this Act;

member means a person who is or has been a member of the Superannuation Fund.

[Section 21A inserted: No. 26 of 1994 s. 9.]

[Part III (s. 22-26) deleted: No. 26 of 1994 s. 10.]

Part IV — Miscellaneous

27. Employers’ powers and liabilities in respect of termination not affected

(1) Nothing in this Act shall affect the rights of the FES Commissioner or an associated employer in relation to the termination of employment of a member of the Superannuation Fund and the fact of being a member of that fund shall not be taken in any respect as implying a guarantee of continued employment by the FES Commissioner or an associated employer.

(2) Nothing in this Act and no right or expectation with respect to the accrual in the future of a benefit under this Act shall affect the quantum of damages in any action brought by a member of the Superannuation Fund against the FES Commissioner or an associated employer on account of the termination of his employment.

[Section 27 amended: No. 26 of 1994 s. 11; No. 42 of 1998 s. 38; No. 22 of 2012 s. 102.]

28. Members’ rights to compensation not affected

(1) Nothing in this Act shall affect the rights of a member of the Superannuation Fund in relation to any claim for damages or compensation that he may have arising out of or with respect to his employment by the FES Commissioner or an associated employer.

(2) A benefit to which a member of the Superannuation Fund or any other person is entitled under this Act shall not be affected by any damages or compensation payable to or in respect of the member.

[Section 28 amended: No. 26 of 1994 s. 12; No. 42 of 1998 s. 38; No. 22 of 2012 s. 103.]

29. General meetings of members of Superannuation Fund

(1) The Superannuation Board shall call an annual general meeting of the members of the Superannuation Fund.

(2) The Superannuation Board may call a special general meeting of the members of the Superannuation Fund whenever it thinks fit and shall call such a meeting at the request, in writing, of not less than 5% of those members.

(3) Subject to regulations the day on which, and time and place at which, a general meeting is held under this section shall be determined by the Superannuation Board.

(4) A general meeting held under this section may make recommendations to the Superannuation Board on the business considered by the general meeting.

(5) A general meeting held under this section shall be conducted in accordance with the prescribed procedures.

[30. Deleted: No. 26 of 1994 s. 13.]

31. Assistance from FES Commissioner

The FES Commissioner may provide the Superannuation Board with such assistance with respect to staff, facilities and services as the FES Commissioner thinks fit.

[Section 31 amended: No. 26 of 1994 s. 14; No. 42 of 1998 s. 38; No. 22 of 2012 s. 104.]

32. Power to make regulations

The Governor may make regulations prescribing all matters that are required or permitted by this Act to be prescribed or are necessary or convenient to be prescribed for giving effect to the purposes of this Act, and in particular may make regulations —

(a) providing for all or any of the people referred to in section 5(4) to be members of the Superannuation Fund, and for continuity and cessation of membership;

(b) as to contributions to the Superannuation Fund by members and by the FES Commissioner and associated employers;

(c) as to the superannuation and other benefits to be paid from the Superannuation Fund and the protection, adjustment, reduction, forfeiture and application of such benefits;

(ca) specifying what, if any, pension benefits may be paid from the Fund, the conditions under which a pension benefit may be paid from the Fund, and to whom a pension benefit may be paid;

(d) as to the manner in which a body specified in Schedule 1 may become and cease to be an associated employer for the purposes of the Superannuation Fund and providing for the case of the winding up, dissolution, amalgamation or transfer of the engagements of an associated employer;

(e) providing for the transfer of persons to or from other superannuation or like funds or schemes;

[(f)-(h) deleted]

(i) requiring members of the Superannuation Fund to undergo medical examinations;

(j) preventing the Superannuation Board from effecting or maintaining a policy of insurance under section 9 if that policy does not comply with prescribed requirements;

(k) as to general meetings under section 29;

(l) requiring the Superannuation Board to furnish reports to the members of the Superannuation Fund and prescribing the matters to be dealt with in such reports;

(m) prescribing the manner in which notices may be served under this Act;

(n) prescribing or providing for the approval of forms for the purposes of this Act;

(o) prescribing requirements as to information to be given in or in connection with applications, returns, claims, elections, and other documents delivered or made for the purposes of this Act, and the evidence to be supplied in support;

(p) imposing conditions or restrictions on the making of amendments to the regulations.

[Section 32 amended: No. 26 of 1994 s. 15; No. 42 of 1998 s. 38; No. 38 of 2002 s. 72; No. 22 of 2012 s. 105.]

[33. Deleted: No. 26 of 1994 s. 16.]

Part V — Amendment, repeal and transitional

[34, 35. Deleted: No. 26 of 1994 s. 16.]

36. Transitional

Schedule 3 shall have effect.

Schedule 1 — Bodies that may be associated employers

[s. 3]

[Heading inserted: No. 38 of 2002 s. 73.]

United Fire Fighters Union of Western Australia

Western Australian Volunteer Fire and Rescue Services Association (Inc.)

Fire and Emergency Services Superannuation Board

[Schedule 1 inserted: No. 38 of 2002 s. 73.]

Schedule 2 — Provisions as to Superannuation Board

[s. 4]

[Heading amended: No. 26 of 1994 s. 18; No. 19 of 2010 s. 4.]

Terms used in this Schedule

In this Schedule, unless the contrary intention appears —

appointed member means a member of the Superannuation Board appointed by the FES Commissioner and includes an alternate member so appointed;

elected member means a member of the Superannuation Board elected by the members of the Superannuation Fund and includes an alternate member so elected.

[Clause 1 amended: No. 26 of 1994 s. 18; No. 42 of 1998 s. 38; No. 22 of 2012 s. 106(1).]

Elections

[(1) deleted]

(2) Whenever the office of an elected member is vacant or is due to become vacant an election shall be conducted in the prescribed manner amongst the members of the Superannuation Fund to elect a person to fill the vacancy.

[Clause 2 amended: No. 26 of 1994 s. 18.]

Terms of office

(1) Subject to this Schedule —

(a) an appointed member shall hold office for such period not exceeding 3 years as is specified in the instrument of his appointment and is eligible for reappointment;

(b) an elected member other than an alternate member shall hold office —

(i) where he is elected to fill a vacancy occurring by effluxion of time — for a period ending 3 years after the occurrence of that vacancy;

(ii) where he is elected to fill a vacancy occurring otherwise than by effluxion of time — for the remainder of the period for which his predecessor in office was elected,

and is eligible for re‑election;

(i) where he is elected to fill a vacancy occurring by effluxion of time — for a period ending 1 year after the occurrence of that vacancy;

(ii) where he is elected to fill a vacancy occurring otherwise than by effluxion of time — for the remainder of the period for which his predecessor in office was elected,

and is eligible for re‑election.

(2) A member elected to fill an office as an alternate member on the coming into operation of the Fire Brigades Superannuation Amendment Act 1994 shall, subject to the other provisions of this Schedule, hold office for a period ending one year after the election.

[Clause 3 amended: No. 26 of 1994 s. 18.]

Chairman

The Superannuation Board may appoint one of its members to be chairman of the Superannuation Board and determine the period for which that member shall hold that office.

[Clause 4 amended: No. 26 of 1994 s. 18.]

Publication

The Superannuation Board shall cause notice of —

(a) the appointment of appointed members to the Superannuation Board;

(b) the election of elected members to the Superannuation Board;

to be published for information in the Gazette.

[Clause 5 amended: No. 26 of 1994 s. 18.]

How vacancies occur

(1) The office of a member of the Superannuation Board becomes vacant if —

(a) he becomes permanently incapable of performing his duties as a member;

(b) he resigns his office by notice in writing delivered to the Superannuation Board;

(d) he becomes an insolvent under administration within the meaning of the Corporations Act 2001 of the Commonwealth;

(e) for more than 2 months he is absent without leave of the Superannuation Board from meetings of the Superannuation Board that he is entitled to attend;

(f) he fails to make a disclosure as required by clause 11;

(g) being an elected member of the Superannuation Board who is a member of the Superannuation Fund, he ceases to be a member of that fund.

(2) The FES Commissioner may remove an appointed member from office for inability, inefficiency or misbehaviour.

(3) An elected member of the Superannuation Board may be removed from office in accordance with the regulations.

[Clause 6 amended: No. 26 of 1994 s. 18; No. 42 of 1998 s. 38; No. 10 of 2001 s. 221; No. 22 of 2012 s. 106(2).]

Alternate members

(1) An appointed member of the Superannuation Board who proposes to be absent from a meeting of the Superannuation Board may, in writing, nominate an appointed alternate member of the Superannuation Board to attend that meeting in his place and the alternate member so nominated is entitled to attend that meeting.

(2) If an appointed member of the Superannuation Board is absent from a meeting of the Superannuation Board and does not make a nomination under subclause (1) the FES Commissioner may nominate an appointed alternate member of the Superannuation Board to attend that meeting and the alternate member so nominated is entitled to attend that meeting.

(3) If for any reason an appointed member of the Superannuation Board vacates his office before the expiry of the period for which he was appointed, the FES Commissioner may nominate an appointed alternate member of the Superannuation Board to attend meetings of the Superannuation Board and the alternate member so nominated is, until the vacancy is filled, entitled to receive notice of and attend every meeting of the Superannuation Board.

(4) An elected member who proposes to be absent from a meeting of the Superannuation Board may, in writing, nominate an elected alternate member to attend that meeting in his or her place and the alternate member so nominated is entitled to attend that meeting.

(5) If an elected member is absent from a meeting of the Superannuation Board and does not make a nomination under subclause (4) the other elected members of the Superannuation Board may nominate an elected alternate member to attend that meeting and the alternate member so nominated is entitled to attend that meeting.

(5a) If for any reason an elected member vacates office before the expiry of the period for which the member was appointed, the other elected members may nominate an elected alternate member to attend meetings of the Board and the alternate member so nominated is, until the vacancy is filled, entitled to receive notice of and attend every meeting of the Superannuation Board.

(6) An alternate member attending a meeting of the Superannuation Board in accordance with this clause has all the powers and duties of a member of the Superannuation Board.

[Clause 7 amended: No. 26 of 1994 s. 18; No. 42 of 1998 s. 38; No. 22 of 2012 s. 106(3).]

Meetings of a Board

(1) The chairman of the Superannuation Board shall preside at all meetings of the Superannuation Board at which he is present but, if a chairman is not elected or the chairman is not present at a meeting, the members of the Superannuation Board present may elect one of their number to preside.

(2) The Superannuation Board shall hold such meetings as are necessary for the performance of its functions.

(3) The secretary of the Superannuation Board may convene a meeting of the Superannuation Board at any time and shall on request in writing by a member of the Superannuation Board convene such a meeting before the expiration of 30 days after the receipt of the request.

(4) The secretary of the Superannuation Board shall notify each member of the Superannuation Board of the time, date, and place of every meeting and adjourned meeting of the Superannuation Board.

(5) Questions arising at a meeting of the Superannuation Board shall be determined by a majority of the votes of the members of the Superannuation Board.

(6) In the case of an equality of votes on a question the person presiding at the meeting shall not have a second or casting vote and the question shall be deemed to have been resolved in the negative.

(7) The Superannuation Board shall cause to be kept a record of the proceedings of its meetings.

(8) Subject to this Act, the Superannuation Board may regulate its own procedure.

[Clause 8 amended: No. 26 of 1994 s. 18.]

Quorum

(1) Subject to subclauses (2) and (3) the quorum for a meeting of the Superannuation Board shall be not less than 4 members of whom not less than 2 shall be appointed members and not less than 2 shall be elected members.

(2) If a quorum is not present at a meeting of the Superannuation Board, the meeting shall be adjourned for 1 week and if a quorum is not then present, the meeting shall be further adjourned for 1 week and, if a quorum is not then present, the members who are present shall, notwithstanding subclause (1), constitute a quorum for the purposes of the meeting.

(3) If as a result of vacancies in the offices of members of the Superannuation Board it is not possible to obtain a quorum for a meeting of the Superannuation Board, the remaining members or member may act for the purpose of —

(a) paying benefits from the Superannuation Fund;

(b) calling a meeting of members of the Superannuation Fund; or

but for no other purpose.

[Clause 9 amended: No. 26 of 1994 s. 18.]

Performance of functions by resolution

(1) A resolution in writing, signed by all members of the Superannuation Board for the time being entitled to receive notice of a meeting of the Superannuation Board, shall be as valid and effectual as if it had been passed at the meeting of the Superannuation Board duly convened and held.

(2) A resolution under subclause (1) may consist of several documents in like form, each signed by one or more members of the Superannuation Board.

[Clause 10 amended: No. 26 of 1994 s. 18.]

Disclosure of interest

(1) A member of the Superannuation Board who has a direct or indirect pecuniary interest in a matter that is being or is about to be considered by the Superannuation Board, otherwise than as a member of and in common with other members of the Superannuation Fund —

(a) shall, as soon as possible after the relevant facts have come to his knowledge, disclose the nature of his interest at a meeting of the Superannuation Board;

(b) shall not take part in any deliberation or decision of the Superannuation Board with respect to that matter.

Penalty: $500.

(2) A disclosure made under subclause (1)(a) at a meeting of the Superannuation Board shall be recorded in the record of proceedings of the Superannuation Board.

(3) For the purposes of clauses 7(1) and (4) and 9, a member who is precluded under subclause (1)(b) from taking part in any deliberation or decision of the Superannuation Board with respect to a matter shall be deemed to be absent from the meeting while that matter is being deliberated or decided upon.

[Clause 11 amended: No. 26 of 1994 s. 18.]

Common seal

(1) The form of the common seal of the Superannuation Board shall be determined by the Superannuation Board.

(2) The common seal of the Superannuation Board shall not be used except upon the resolution of the Superannuation Board.

(3) The common seal of the Superannuation Board shall only be affixed to an instrument in the presence of 2 members and the instrument shall be signed by those 2 members.

[Clause 12 amended: No. 26 of 1994 s. 18.]

Allowances

There shall be paid to the members of the Superannuation Board such allowances as the Minister may, on the recommendation of the Superannuation Board approve.

[Clause 13 amended: No. 26 of 1994 s. 18.]

Indemnity

No liability shall attach to the Superannuation Board or to a member of the Superannuation Board for any act or omission that occurred in good faith and in the exercise or purported exercise of their or his powers or in the discharge or purported discharge of their or his duties under this Act.

[Clause 14 amended: No. 26 of 1994 s. 18.]

Schedule 3 — Transitional provisions

[s. 36]

[Heading amended: No. 19 of 2010 s. 4.]

Part I — Superannuation Fund

Terms used in this Part

In this Part —

former regulations means the regulations mentioned in section 35(a);

previous superannuation fund means the Western Australian Fire Brigades Board Superannuation Fund continued by the former regulations.

Transfer of assets and liabilities

All moneys standing to the credit of, and all investments forming part of, the previous superannuation fund immediately before the commencement of this Act shall, on and after that commencement, stand to the credit of, or form part of the Superannuation Fund for the purposes of this Act, and all liabilities of the previous Superannuation fund immediately before that commencement, including contingent liabilities, shall on and after that commencement, be liabilities of the Superannuation Fund.

Transfer of operations

(1) Any policy of insurance, agreement or instrument subsisting immediately before the commencement of this Act to which the Fire Brigades Board is a party and which relates to the administration of the former regulations shall, subject to this Act, subsist and enure for the purposes of the administration of the Superannuation Fund as if —

(a) the Superannuation Board were substituted for the Fire Brigades Board as a party to the policy, instrument or agreement; and

(b) any reference in the policy, agreement or instrument to the Fire Brigades Board were (unless the context otherwise requires) a reference to the Superannuation Board.

(2) Any proceedings pending immediately before the commencement of this Act which the Fire Brigades Board is a party and which relates to the former regulations may be continued after that commencement as if the Superannuation Board were a party thereto in lieu of the Fire Brigades Board.

(3) Any question arising as to whether or not a provision of this clause applies to any particular policy, agreement, instrument or proceedings shall be determined by the Minister and the decision of the Minister is final.

Claims preserved

Any claim for benefits under the former regulations that has not been finally dealt with immediately before the commencement of this Act may be proceeded with and dealt with after that commencement as if it were a claim for benefits from the Superannuation Fund under this Act.

Interim Board members

The Minister shall appoint person to act as members of the Superannuation Board under section 4(4)(b) until members of the Superannuation Board are elected under clause 2(1) of Schedule 2.

Part II — Disablement Benefits Fund

Terms used in this Part

In this Part —

former regulations means the regulations mentioned in section 35(b);

previous disablement benefits fund means the Western Australian Fire Brigades Disablement Benefits Fund established by the former regulations.

Transfer of assets and liabilities

All moneys standing to the credit of, and all investments forming part of, the previous disablement benefits fund immediately before the commencement of this Act shall, on and after that commencement, stand to the credit of, or form part of the Disablement Benefits Fund for the purposes of this Act, and all liabilities of the previous disablement benefits fund immediately before that commencement, including contingent liabilities, shall on and after that commencement, be liabilities of the Disablement Benefits Fund.

Transfer of operations

(a) the Disablement Benefits Board were substituted for the Fire Brigades Board as a party to the policy, instrument or agreement; and

(b) any reference in the policy, agreement or instrument to the Fire Brigades Board were (unless the context otherwise requires) a reference to the Disablement Benefits Board.

(2) Any proceedings pending immediately before the commencement of this Act to which the Fire Brigades Board is a party and which relates to the former regulations may be continued after that commencement as if the Disablement Benefits Board were a party thereto in lieu of the Fire Brigades Board.

Claims preserved

Any claim for benefits under the former regulations that has not been finally dealt with immediately before the commencement of this Act may be proceeded with and dealt with after commencement as if it were a claim for benefits from the Disablement Benefits Fund under this Act.

Interim Board members

The Minister shall appoint persons to act as members of the Disablement Benefits Board under section 22(4)(b) until members of the Disablement Benefits Board are elected under clause 2(1) of Schedule 2.

Notes

1 This is a compilation of the Fire and Emergency Services Superannuation Act 1985 and includes the amendments made by the other written laws referred to in the following table. The table also contains information about any reprint.

Compilation table

Short title	Number and year	Assent	Commencement
Fire Brigades Superannuation Act 19852	87 of 1985	4 Dec 1985	3 Nov 1986 (see s. 2 and Gazette 24 Oct 1986 p. 3938)
Acts Amendment (Financial Administration and Audit) Act 1986 s. 4	4 of 1986	27 Jun 1986	1 Jul 1986 (see s. 2)
Fire Brigades Superannuation Order 1987 published in Gazette 14 Aug 1987 p. 3163			14 Aug 1987
Fire Brigades Superannuation (Associated Employer) Order 1988 published in Gazette 18 Nov 1988 p. 4532			4 Nov 1988 (see cl. 2)
Fire Brigades Superannuation Amendment Act 1992	19 of 1992	16 Jun 1992	16 Jun 1992 (see s. 2)
Fire Brigades Superannuation Amendment Act 1994 3	26 of 1994	23 Jun 1994	Act other than s. 5, 10‑14, 15(d)‑(g) and 16‑25: 29 Jun 1994 (see s. 2 and Gazette 29 Jun 1994 p. 3201); s. 5, 10‑14, 15(d)‑(g), and 16‑25: 1 Jul 1994 (see s. 2)
Trustees Amendment Act 1997 s. 18	1 of 1997	6 May 1997	16 Jun 1997 (see s. 2 and Gazette 10 Jun 1997 p. 2661)
Statutes (Repeals and Minor Amendments) Act 1997 s. 61	57 of 1997	15 Dec 1997	15 Dec 1997 (see s. 2(1))
Fire and Emergency Services Authority of Western Australia (Consequential Provisions) Act 1998 s. 38 4	42 of 1998	4 Nov 1998	1 Jan 1999 (see s. 2 and Gazette 22 Dec 1998 p. 6833)
Corporations (Consequential Amendments) Act 2001 s. 221	10 of 2001	28 Jun 2001	15 Jul 2001 (see s. 2 and Gazette 29 Jun 2001 p. 3257 and Cwlth Gazette 13 Jul 2001 No. S285)
*Reprint of the Fire Brigades Superannuation Act 1985* as at 15 Feb 2002** (includes amendments listed above)
Fire and Emergency Services Legislation Amendment Act 2002 Pt. 5	38 of 2002	20 Nov 2002	30 Nov 2002 (see s. 2 and Gazette 29 Nov 2002 p. 5651‑2)
Financial Legislation Amendment and Repeal Act 2006 s. 17	77 of 2006	21 Dec 2006	1 Feb 2007 (see s. 2(1) and Gazette 19 Jan 2007 p. 137)
*Reprint 2: The Fire and Emergency Services Superannuation Act 1985* as at 16 Feb 2007** (includes amendments listed above)
Standardisation of Formatting Act 2010 s. 4	19 of 2010	28 Jun 2010	11 Sep 2010 (see s. 2(b) and Gazette 10 Sep 2010 p. 4341)
Fire and Emergency Services Legislation Amendment Act 2012 Pt. 5	22 of 2012	29 Aug 2012	1 Nov 2012 (see s. 2(b) and Gazette 31 Oct 2012 p. 5255)

2 Now known as the Fire and Emergency Services Superannuation Act 1985; short title changed (see note under s. 1).

3 The Fire Brigades Superannuation Amendment Act 1994 Pt. 3 reads as follows:

“

Part 3 — Transitional and consequential provisions

Interpretation

(1) In this Part, unless the contrary intention appears —

commencement day means the day on which this Act comes into operation;

former Board means the Western Australian Fire Brigades Disablement Benefits Board established under the repealed Part;

former Fund means the Western Australian Fire Brigades Disablement Benefits Fund established under the repealed Part;

repealed Part means the Part repealed by section 10;

Superannuation Board means the Western Australian Fire Brigades Superannuation Board established under section 4 of the principal Act;

Superannuation Fund means the Western Australian Fire Brigades Superannuation Fund established under section 5 of the principal Act.

Transfer of assets and liabilities

On the commencement day, by virtue of this section —

(a) all assets standing to the credit of or forming part of the former Fund stand to the credit of or form part of the Superannuation Fund without the need for any conveyance, transfer, assignment or assurance;

(b) all rights and liabilities of the former Board, including contingent liabilities, become rights and liabilities of the Superannuation Board;

(c) a claim for any benefits from the former Fund that had not been finally dealt with immediately before the commencement day may be dealt with as if it were a claim for benefits from the Superannuation Fund under the principal Act;

(d) the rights, obligations and entitlements of persons who were members of the former Fund are taken to be rights, obligations and entitlements of those persons as members of the Superannuation Fund;

(e) any policy of insurance, agreement or instrument to which the former Board is a party and which relates to the administration of the former Fund has effect, by force of this section, as if the Superannuation Board were substituted for the former Board as a party to the policy, instrument or agreement;

(f) all proceedings commenced before the commencement day by or against the former Board and pending immediately before the commencement day are to be taken to be proceedings pending by or against the Superannuation Board; and

(g) anything done or omitted to be done in relation to the assets, rights and liabilities referred to in paragraphs (a), (b), (c) and (d) before the commencement day by, to or in respect of the former Board (to the extent that that thing has any force or effect) is to be taken to have been done or omitted by, to or in respect of the Superannuation Board.

Records

The Superannuation Board becomes, on the commencement day, the owner of all registers, documents, books and other records (however compiled, recorded or stored) relating to the former Fund, and of any tape, disc or other device or medium relating to such records.

Exemption from Stamp Act 1921

Notwithstanding anything in the Stamp Act 1921, no duty is payable under that Act in respect of the passing of any assets under this Part.

Registration of documents

(1) The Registrar of Titles, the Registrar of Deeds, the Minister administering the Land Act 1933, and any other person authorised by a written law to record and give effect to the registration of documents relating to transactions affecting any estate or interest in land or other property, are to take notice of the provisions of this Part and are empowered to record and register in the appropriate manner such of those documents as are necessary to give effect to this Part.

(2) Without limiting subsection (1) a statement in an instrument executed by the Superannuation Board that any estate or interest in land or other property stands to the credit of or is part of the Superannuation Fund under section 20 is evidence of that fact.

Report

(1) Notwithstanding section 10, the former Board is to report in respect of the former Fund under section 66 of the Financial Administration and Audit Act 1985 in respect of the period between 1 July 1993 and the commencement day as soon as practicable after the commencement day, and the former Board is continued in existence for that purpose.

(2) A report prepared under subsection (1) is deemed to be an annual report for the purposes of section 69 of the Financial Administration and Audit Act 1985.

”.

4 The Fire and Emergency Services Authority of Western Australia (Consequential Provisions) Act 1998 s. 38, which gives effect to Sch. 1 reads as follows:

“

Part 4 — Miscellaneous amendments

Miscellaneous amendments

The Acts mentioned in Schedule 1 are amended as set out in that Schedule.

”.

Schedule 1 cl. 13 reads as follows:

“

(13) Despite the amendments made to section 4 of the Fire Brigades Superannuation Act 1985 by subclause (12), a person appointed and holding office under that section immediately before the commencement of this clause as a member or alternate member of the Western Australian Fire Brigades Superannuation Board continues, subject to that Act, to hold that office on and after that commencement for the remainder of the period for which the person was appointed.

”.

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)

appointed member Sch. 2 cl. 1

associated employee 3(1)

associated employer 3(1)

Authority 3(1)

beneficiary 21A(3)

Commissioner 3(1)

Commonwealth Act 3(1)

Commonwealth standards 3(1)

document 21(4)

effect 9(3)

elected member Sch. 2 cl. 1

eligible FES employee 3(1)

FES Commissioner 3(1)

Fire Brigades Board 3(1)

firefighter 3(1)

former Authority employee 3(1)

former Fire Brigades Board employee 3(1)

former regulations Sch. 3 cl. 1, Sch. 3 cl. 6

information 21(4)

liabilities 20(1)

member 21A(3)

parliamentary purposes 21(4)

previous disablement benefits fund Sch. 3 cl. 6

previous superannuation fund Sch. 3 cl. 1

property 3(1)

Superannuation Board 3(1)

Superannuation Fund 3(1)

the actuary 3(1)

Western Australia

Fire and Emergency Services Superannuation Act 1985

Western Australia

Fire and Emergency Services Superannuation Act 1985

Contents

Part I — Preliminary

Short title 2
Commencement 2
Terms used in this Act 2

Part II — The Fire and Emergency Services Superannuation Board and Fund

Establishment and constitution of Superannuation Board 4
The Superannuation Fund 5
Function and general powers of Superannuation Board 6

6A. Compliance with Commonwealth standards 8

Power of investment 8
Investment policy 9
Power to insure 9
Superannuation Board to have powers of a trustee 10
Discretionary exercise of powers 10
Power to make determinations 10
Delegation 11
Appointment of investment managers 11
Appointment of secretary 11
Appointment of actuary 12
Actuarial review 12
Advice to Superannuation Board 12
Records 13

19A. Application of Financial Management Act 2006 and Auditor General Act 2006 13

Accounts 13
Minister to have access to information 14

21A. Confidential information 15

Part IV — Miscellaneous

Employers’ powers and liabilities in respect of termination not affected 16
Members’ rights to compensation not affected 16
General meetings of members of Superannuation Fund 17
Assistance from FES Commissioner 17
Power to make regulations 17

Part V — Amendment, repeal and transitional

The Act organises three interlocking concepts: a statutory Fund, a governing Board, and a framework of administrative and prudential constraints.

Statutory Fund: The Fund is a defined statutory pool consisting of member contributions and contributions by the FES Commissioner and associated employers, plus all other property and income invested on behalf of the Fund (s 5(2)). The Fund is the repository from which benefits specified under the Act and regulations are payable and from which administrative costs, election costs and Board allowances are met (s 5(3)). The Act contemplates continuity from prior statutory schemes by expressly continuing assets, liabilities and ongoing operations from predecessor funds and bodies (Sch 3 cl 2-4, 7-9).

Governing Board: The Board is a corporate body that holds the Fund on trust and administers, invests and manages it (s 4; s 6; s 10). It is constituted as a six-person body with half its members appointed by the FES Commissioner and half elected by Fund members, with elected members required to include at least two members of the Fund (s 4(4)). The Board has an official seal, may sue and be sued (s 4(2)), and its procedural arrangements, quorum rules, vacancy and removal grounds, alternates, disclosure obligations and indemnity are contained in Schedule 2. The Board has express power to delegate in writing (s 13) and to appoint external investment managers on terms it considers fit (s 14).

Investment and prudential constraints: The Act grants broad investment powers but circumscribes them through several mechanisms. The Board must have regard only to the best interests of the Fund and its members when investing (s 8). The Board must ensure compliance with the Commonwealth standards as they apply to the Fund and comply with any requirement made by the Commissioner under the Commonwealth Act (s 6A). The Board may raise or borrow money and secure liabilities, but borrowing is limited to overcoming cash flow problems in the payment of benefits (s 6(4)). The Act expressly prohibits the Board from lending Fund money to a Fund member (s 7(4)). The Board may insure risks related to benefits and pay premiums from the Fund, subject to any regulatory constraints (s 9; s 32(j)).

Transparency and oversight: The Board must keep complete records of members, deaths and other matters necessary for proper administration (s 19), call an annual general meeting of members and hold special meetings on request (s 29), and obtain triennial actuarial reviews with time-limited reporting (s 17). The Financial Management Act 2006 and Auditor General Act 2006 apply to the Board’s financial administration and audit (s 19A), and the Minister has statutory rights of access to Board information for parliamentary and public business, with an express carve-out protecting member-identifying information (ss 21, 21A). The Act delegates detailed design choices to regulations, which can prescribe members, contributions, benefits (including pension arrangements), transfer arrangements, and other procedural and evidentiary requirements (s 32).

Legal continuity and transitional mechanics: The Act continues the previous Board and Fund as the same entities and, via Schedule 3, transfers assets, liabilities and contractual relationships from predecessor schemes into the new Fund and Board, preserves outstanding claims, and provides that certain questions about whether a particular instrument is covered are to be determined by the Minister, whose decision is final (Sch 3 cl 2-4; cl 3(3)). This creates mechanisms for legal continuity of rights and obligations across institutional change.

Collectively these concepts create a statutory hybrid: a trust-style fund with corporate governance and public oversight, broad discretion in investment and contracting, and explicit duties to comply with Commonwealth prudential standards and to act in members’ best interests.

Members and potential members: The immediate financial participants are the members of the Superannuation Fund. The Act permits the regulations to specify who is a member, expressly listing categories that may be included: current and former eligible FES employees (firefighters and specified departmental officers), current and former associated employees, former Fire Brigades Board employees, former Authority employees, and current and former spouses or de facto partners of those persons (s 5(4)(a)-(d)). The regulations therefore determine the precise scope of membership and continuity rules (s 32(a)). Members are affected by the Board’s powers to invest, insure and determine benefits, and by the duty that investments be made only in the best interests of members (s 8).

Employers and contributors: The Fund is funded by contributions from members and by contributions from the FES Commissioner and any associated employers (s 5(2)(a)). Associated employers are bodies listed in Schedule 1 and may be added or removed by Governor’s order (s 3(2); Schedule 1). The Act permits regulations prescribing how a body may become or cease to be an associated employer, with provisions to address winding up, dissolution or transfer of engagements (s 32(d)). Employers therefore have financial obligations in respect of contributions and practical exposure where they are listed as associated employers.

FES Commissioner and government actors: The FES Commissioner appoints up to three Board members (s 4(4)(a)), may provide assistance to the Board by making staff and facilities available (s 31), and receives actuarial reports (s 17(4)). The Minister has statutory rights to access Board information for parliamentary or public business, and to require the Board to provide information and make staff and facilities available (s 21). The Minister’s access is limited by a confidentiality carve-out protecting member-identifying information unless authorised (s 21A). The Governor may make regulations and alter Schedule 1 by Gazette (s 32; s 3(2)). The FES Commissioner and Minister are therefore central decision-makers and oversight actors.

Investment managers, delegates and service providers: The Board can delegate powers and appoint investment managers on terms and remuneration it considers fit (s 13; s 14). Investment managers may be registered as holding property in trust in their name (s 14(3)). Delegates that receive and expend money on behalf of the Board must provide an annual statement of account and of assets and liabilities as held or incurred on behalf of the Board (s 20(3)). External professional advisers engaged under s 18 may include accountants, actuaries, legal practitioners and stockbrokers and the Board may act on their advice (s 18).

Regulators and auditors: The Commonwealth Commissioner under the Superannuation Industry (Supervision) Act has regulatory reach where Commonwealth standards apply; the Board must ensure compliance with those standards and with any requirements of the Commissioner under the Commonwealth Act (s 6A). At the State level, the Financial Management Act 2006 and the Auditor General Act 2006 apply to the Board and its operations (s 19A), bringing the Board within statutory financial administration and audit regimes.

Third parties with contractual relationships: Policies of insurance, agreements, instruments and proceedings in existence immediately before commencement are transferred to the new Board and Fund and continue to have effect as if the Board were substituted for the prior entity (Schedule 3 cl 3; Sch 3 cl 8). The Minister has final decision-making power on whether that transfer applies to a particular instrument (Sch 3 cl 3(3)). Third parties to such agreements are therefore affected by the legal transfer mechanics.

Other affected groups: The Act provides for general meetings of members (s 29), and lists certain bodies in Schedule 1 that may be associated employers, including unions and volunteer associations. The Board is empowered to require medical examinations of members via regulations (s 32(i)), potentially affecting members’ privacy and medical assessment requirements. Members and beneficiaries are also protected from disclosure of identifying information under s 21A, unless authorised.

In short, the Act affects a mix of private individuals (members and their dependants), public entities (FES Commissioner, Minister, Governor), private service providers, and previously contracted third parties whose rights and obligations are transitioned into the Fund.

Duties of the Superannuation Board

Administer, invest and manage the Superannuation Fund (s 6(1)). This is the Board’s primary statutory function. The Act gives the Board all acts and things necessary or convenient to perform those functions (s 6(2)).
Act only in the best interests of the Fund and its members when making investments. Section 8 imposes a single-fiduciary investment duty on the Board and on delegates who undertake investment of any part of the Fund.
Ensure compliance with Commonwealth prudential standards and with requirements of the Commissioner under the Commonwealth Act so far as those standards apply to the Fund (s 6A(1)(a)-(b)). Section 6A has express primacy over other provisions (s 6A(2)).
Maintain and keep complete records of members, deaths and other matters necessary for proper administration (s 19). The Board must also obtain actuarial reviews at least every three years and supply those reports to the FES Commissioner and associated employers (s 17).
Observe statutory limits on lending and borrowing: the Board must not lend Fund money to a Fund member (s 7(4)), and may raise or borrow money only to overcome cash flow problems in the payment of benefits (s 6(4)).
Consult or have access to professional advice from accountants, actuaries, legal practitioners, medical practitioners, stockbrokers and other professionals and may act on their advice (s 18).
Comply with obligations under the Financial Management Act 2006 and the Auditor General Act 2006 regulating financial administration, audit and reporting (s 19A).

Delegable and exercisable powers

The Board may delegate any power or duty conferred by this Act by instrument in writing (s 13). A power exercised by a delegate in accordance with the delegation instrument is deemed to have been exercised by the Board (s 13(2)). The Board may appoint investment managers and delegate investment powers to them (s 14).
The Board has trustee powers by statute (s 10) and may exercise its powers in such circumstances and on such terms as it thinks fit, including jointly with other persons, and may intermix Fund property with other property where the Board considers appropriate, subject to investment duty (s 11).

Rights of members and beneficiaries

Members and beneficiaries have rights to superannuation and other benefits as set out in the Act and the regulations. The Act provides that Fund assets are available for payment of benefits to members and their dependants (s 5(3)(a)).
Members retain their rights to pursue damages or compensation arising out of employment notwithstanding Fund membership. The Act states that membership does not affect entitlement to damages and that benefits from the Fund do not affect damages payable (ss 27-28).

Other statutory rights and obligations

The Minister is entitled to information in the Board’s possession for parliamentary purposes and the proper conduct of public business and may request documents or copies; the Board must comply (s 21(1)-(3)). That entitlement is, however, limited so as not to require disclosure of information in a form that discloses or enables identification of a member or beneficiary, unless authorised by written law or by the member or beneficiary (s 21A).
Elected Board members must be elected in the prescribed manner and elected members who are members of the Fund cease to be members of the Board if they cease to be members of the Fund (Sch 2 cl 2; cl 6(1)(g)). The FES Commissioner may remove appointed members for inability, inefficiency or misbehaviour (Sch 2 cl 6(2)). Elected members may be removed in accordance with regulations (Sch 2 cl 6(3)).
Board members must disclose direct or indirect pecuniary interests and must not take part in deliberations or decisions on that matter; failure to disclose is penalised ($500) (Sch 2 cl 11(1)-(2)).
The Board must appoint an actuary who is a Fellow of the Institute of Actuaries of Australia or equivalent (s 16(1)), and ensure actuarial review timelines are met (s 17(1), (3a)).

Regulatory and rule-making rights

The Governor may make regulations prescribing membership classes, contributions, benefits, the manner of elections, medical examination requirements, and many other matters necessary for administration (s 32(a)-(p)). In particular, regulations can specify whether pensions or pension conditions are payable from the Fund and to whom (s 32(ca)).
The Board may make determinations to resolve doubts as to interpretation, rights of members, and management and administration of the Fund (s 12). Those determinations are the Board’s statutory mechanism for resolving questions of operation.

In summary, statutory duties place primary emphasis on prudent administration, member-first investment decision-making and compliance with Commonwealth prudential standards. Rights are provided to members in respect of benefits and to the Minister and auditors for oversight; employment-related legal rights remain separate from Fund entitlements.

Statutory penalty provisions and formal enforcement mechanisms in the Act are relatively narrow and are focused on governance obligations and oversight rather than a broad regime of sanctions.

Express civil penalty: Schedule 2 clause 11 imposes a monetary penalty of $500 where a member of the Superannuation Board fails to disclose a direct or indirect pecuniary interest in a matter being considered by the Board, as required by clause 11(1)(a). The same clause requires disclosure to be recorded in the minutes (cl 11(2)), and precludes the conflicted member from taking part in deliberation or decision-making on that matter (cl 11(1)(b)). The penalty amount is stated in the Act; no other amounts or criminal penalties are provided in the text for disclosure failures.

Removal powers and vacancy grounds: The FES Commissioner may remove an appointed member from the Board for inability, inefficiency or misbehaviour (Sch 2 cl 6(2)). An elected member may be removed in accordance with regulations (Sch 2 cl 6(3)). Grounds for vacating office include permanent incapacity, resignation, insolvency under administration (per the Corporations Act 2001) (Sch 2 cl 6(1)(d)), extended unapproved absence from meetings (cl 6(1)(e)), and failure to make required disclosures (cl 6(1)(f)). These mechanisms provide governance-level enforcement that can be exercised administratively by the Commissioner or via the regulatory removal process.

Oversight and audit: The Board is brought within the Financial Management Act 2006 and Auditor General Act 2006 regimes, which regulate financial administration, audit and reporting for statutory authorities (s 19A). That application subjects the Board to statutory audit by the Auditor General and to financial administration obligations and remedial powers available under those Acts. The Board must also produce accounts and ensure delegates provide annual statements of account when receipt or expenditure has been delegated (s 20(3)). These statutory accountability regimes provide non‑criminal enforcement through public audit and administrative remedies.

Ministerial information powers: The Minister may request information or documents from the Board for parliamentary purposes or the proper conduct of public business (s 21(1)-(3)). The Board is required to comply with requests and to make staff and facilities available for the purposes of furnishing information (s 21(3)). Those powers enable political and parliamentary oversight and potentially public scrutiny through parliamentary processes.

Regulatory compliance under Commonwealth law: The Board must ensure the Fund complies with Commonwealth standards and must comply with any requirement made by the Commonwealth Commissioner under the Commonwealth Act (s 6A(1)(a)-(b)). Where Commonwealth standards apply, enforcement by the Commonwealth regulator (the Commissioner under the Commonwealth Act) could arise under the Commonwealth Act, including directions or other supervisory measures, although those Commonwealth mechanisms are not set out in this Act. Section 6A(2) gives the compliance requirement primacy notwithstanding other provisions of this Act.

Finality of certain ministerial decisions: Under Schedule 3 the Minister’s decision as to whether transitional provisions apply to a particular policy, agreement, instrument or proceeding is final (Sch 3 cl 3(3)). That clause gives the Minister an administrative final-decision power over transitional legal continuity matters; the Act does not itself state recourse by judicial review here, but provides finality in the statutory text for those transfer questions.

No wide-ranging criminal regime in the Act: Beyond the $500 disclosure penalty and removal provisions, the Act contains no other specified fines, criminal offences or financial penalties for mismanagement, breach of fiduciary duty or failure to comply with investment duties. Enforcement therefore principally operates by audit, Ministerial and Commissioner oversight, removal or suspension of Board members, and protections conferred on members in other laws. The Board’s indemnity for acts or omissions done in good faith (Sch 2 cl 14) limits personal civil liability for Board members acting in good faith, which affects the liability posture for civil enforcement.

In practice this structure concentrates enforcement mechanisms in oversight, audit and governance removal powers rather than in criminal or broad civil penalty regimes within the Act itself. Where Commonwealth standards apply, additional enforcement mechanisms under Commonwealth law may supplement state-level oversight, per s 6A.

Commonwealth superannuation law: The Act expressly incorporates the concept of the Commonwealth Act, defined as the Superannuation Industry (Supervision) Act 1993 of the Commonwealth or any prescribed Commonwealth Act, and requires the Board to ensure the Fund complies with the Commonwealth standards so far as they apply to that Fund (s 3; s 6A(1)(a)). The Board must also comply with any requirement made by the Commissioner under the Commonwealth Act (s 6A(1)(b)). Section 6A(2) provides that the Commonwealth compliance requirement operates notwithstanding any other provision of this Act. That integration creates a direct line of regulatory deference to Commonwealth prudential requirements where they apply.

State financial administration and audit laws: The Financial Management Act 2006 and Auditor General Act 2006 apply to and in respect of the Superannuation Board and its operations (s 19A). This subjects the Board to the State framework for financial administration and external audit, record-keeping, reporting and the statutory obligations and powers that flow from those Acts. Where moneys are delegated for receipt or expenditure, the Board must procure from the delegate a full and true annual statement of account (s 20(3)), aligning with statutory financial oversight.

Corporations Act interactions: Schedule 2 clause 6(1)(d) provides that a Board member’s office becomes vacant if he or she becomes an insolvent under administration within the meaning of the Corporations Act 2001 (Cth). That clause links insolvency and office vacancy directly to the Corporations Act definition and regime.

Pre-existing statutory schemes and transitional continuity: The Act continues and treats as the same legal entities the prior Western Australian Fire Brigades Superannuation Board and Fund (ss 4(1a), 5(1a)). Schedule 3 transfers assets, investments and liabilities from previous funds and provides that policies, agreements and instruments subsisting immediately before commencement and relating to the former regulations shall subsist and enure for the purposes of the new Fund or Board as if the Board were substituted for the prior body (Sch 3 cl 3(1)). Proceedings pending immediately prior to commencement may continue as if the Board were the party (Sch 3 cl 3(2)). The Minister’s determination whether the clause applies to a particular instrument is final (Sch 3 cl 3(3)). Those provisions create a statutory bridge linking old entitlements and contracts to the new statutory entity.

State employment and damages law: Sections 27 and 28 expressly state that nothing in the Act affects the rights of the FES Commissioner or an associated employer in relation to termination of employment, and that membership of the Fund does not imply any guarantee of continued employment (s 27(1)). Section 27(2) clarifies that no right or expectation regarding future accrual of benefits affects the quantum of damages in an action against the FES Commissioner or an associated employer for termination. Section 28(1) confirms that the Act does not affect a member’s claim for damages or compensation arising out of employment, and s 28(2) clarifies that a benefit under this Act does not affect damages or compensation payable to or in respect of a member. These sections preserve the primacy of existing employment and tort law rights and liabilities.

Regulatory delegation and ministerial oversight: The Governor may make regulations on many aspects of membership, contributions, benefits, elections and other procedural requirements (s 32). The Minister may request information and documents from the Board for parliamentary or public business and the Board must comply (s 21). The Minister’s information powers are subject to the confidentiality exception for member-identifying information unless disclosure is authorised by written law or the member/beneficiary (s 21A). The regulations therefore mediate the interface between the Act’s framework and operational detail, and ministerial and parliamentary oversight interacts with statutory confidentiality protections.

Other state Acts referenced: The Act cross-refers to the Fire and Emergency Services Act 1998 (definition of eligible FES employees and FES Commissioner) and to the former Fire Brigades Act 1942 in definitions (s 3). The Act also makes explicit reference to the Corporations Act for insolvency definitions in Schedule 2 cl 6(1)(d). These cross-references coordinate the Fund’s governance and membership definitions with related statutory regimes.

Overall, the Act sits within a matrix of Commonwealth prudential standards, State financial administration and audit regimes, employment law and existing contractual arrangements, adopting a model where state statutory arrangements are subordinate to Commonwealth prudential standards where applicable, and subject to State audit and ministerial oversight.

The Act has been amended multiple times since enactment. The compilation table included in the legislative text records the key amending statutes and dates and identifies inserted sections and reprints. The principal milestones recorded in the Act text and compilation table are:

1986: The Acts Amendment (Financial Administration and Audit) Act 1986 applied and the Act’s commencement mechanics took effect (compilation table entries and s 2).
1992: Fire Brigades Superannuation Amendment Act 1992 (No. 19 of 1992) made amendments including, per the marginal notes in later text, the insertion of s 6A (compliance with Commonwealth standards) and changes to definitions and powers (see s 6A inserted: No. 19 of 1992 s. 6; other references to 1992 amendments throughout s 3 and s 6).
1994: Fire Brigades Superannuation Amendment Act 1994 (No. 26 of 1994) made substantive changes and transitional provisions; the compilation table records the Act’s reprint as at 2002 incorporating earlier amendments. Schedule 3 and several Schedule 2 provisions were affected by the 1994 amendments, and part of the text indicates Pt 3 transitional and consequential provisions in that Act (notes under compilation table). The 1994 amendment also changed some elective and appointment mechanics (Schedule 2 references).
1997: Trustees Amendment Act 1997 s 18 effected amendments that are reflected in the investment power provisions (s 7 amended: No. 1 of 1997 s. 18) and possibly other technical trustee adjustments.
1998: Fire and Emergency Services Authority of Western Australia (Consequential Provisions) Act 1998 (No. 42 of 1998) effected changes tied to administrative restructurings, including re‑definitions and transitional provisions aligning the Act with the new Authority provisions (compilation table; ss 3, 4 and 5 note amendments by No. 42 of 1998 s. 38). The compilation table notes that the Act was amended in consequence of establishment of the Fire and Emergency Services Authority.
2001: Corporations (Consequential Amendments) Act 2001 (No. 10 of 2001) introduced cross‑references to the Corporations Act, notably insolvency definitions for vacancy of office (Sch 2 cl 6(1)(d)).
2002: Fire and Emergency Services Legislation Amendment Act 2002 (No. 38 of 2002) made further amendments, included the insertion of heading changes and Schedule 1 (the list of bodies that may be associated employers) (see Schedule 1 heading inserted No. 38 of 2002 s. 73; various s amendments tagged No. 38 of 2002 throughout the text).
2006: Financial Legislation Amendment and Repeal Act 2006 (No. 77 of 2006) led to the insertion of s 19A, applying the Financial Management Act 2006 and Auditor General Act 2006 to the Board (s 19A inserted: No. 4 of 1986 s. 4; amended: No. 77 of 2006 s. 17).
2010: Standardisation of Formatting Act 2010 (No. 19 of 2010) effected drafting and presentation standardisation (compilation table notes).
2012: Fire and Emergency Services Legislation Amendment Act 2012 (No. 22 of 2012) made a series of amendments including updates to definitions (e.g. Authority, former Authority employee), and additional amendments to sections governing Board composition and functions (see many marginal notes s 3, s 4-6, s 17, s 31, s 32 referencing No. 22 of 2012 s. 96-105). The compilation table records commencement 1 Nov 2012 for that Act.

Reprints: The Act has been reprinted at least twice, with Reprint 1 as at 15 Feb 2002 and Reprint 2 as at 16 Feb 2007, incorporating amendments up to those dates (compilation table). Multiple sections include margin notes indicating the schedule and clause numbers of amending Acts and the specific sections inserted by later amending statutes (see footers like [Section 6A inserted: No. 19 of 1992 s. 6]; [Section 19A inserted: No. 4 of 1986 s. 4; amended: No. 77 of 2006 s. 17]).

Substantive insertions and changes noted in the Act text include:

Section 6A (Compliance with Commonwealth standards) was inserted by the 1992 amendment (No. 19 of 1992 s. 6).
Schedule 1 (Bodies that may be associated employers) was inserted in 2002 (No. 38 of 2002 s. 73), and is further subject to Governor amendment (s 3(2)).
Section 19A was included to apply State financial administration and audit Acts, the insertion reflecting the 2006 financial legislation amendments (s 19A inserted and amended by No. 77 of 2006 s. 17).
Multiple small amendments across the Act reflect harmonisation with the Fire and Emergency Services Act 1998 and later machinery changes.

The compilation table provides the authoritative sequential list of amendments and the dates of assent and commencement. The Act’s amendment history therefore shows progressive alignment to Commonwealth prudential norms, State financial administration standards, administrative machinery changes in Fire and Emergency Services governance, and technical trustee law changes.

The Act text itself does not list or cite any cases, nor does it include a schedule of court decisions or litigation outcomes. The provided legislative material contains no references to judicial interpretation or litigation history. Where the Act creates final administrative decisions or limited finality it does reference those mechanisms in the text.

Notable statutory provisions that may be loci for litigation or judicial review, as set out in the Act, include:

Board determinations. Section 12 empowers the Superannuation Board to determine questions of interpretation of the Act’s provisions relating to the Fund, rights of members, and management and administration issues. The Act does not itself specify statutory ouster of judicial review; however in practice Board determinations could be the subject of review depending on judicial interpretation. The Act does not include any non‑justiciability clause expressly insulating Board determinations from court review.
Ministerial finality in transition. Schedule 3 clause 3(3) provides that any question as to whether a provision applies to a particular policy, agreement, instrument or proceeding shall be determined by the Minister, and the decision of the Minister is final. That statutory finality clause may reduce the scope for administrative appeal within the executive, although it does not expressly address judicial review remedies in the courts. The text states "the decision of the Minister is final" but does not elaborate on legal remedies or the availability of review.
Confidentiality and ministerial access. Sections 21 and 21A create rights for the Minister to obtain Board information and protections for member-identifying information respectively. Disputes may arise concerning the scope of disclosure and whether the information requested is disclosable under s 21A exceptions. The Act does not contain adjudicative procedures for such disputes; they would be dealt with under general administrative law or other statutory regimes.
Compliance with Commonwealth standards. Section 6A binds the Board to Commonwealth standards and to requirements by the Commissioner under the Commonwealth Act. Enforcement and interpretation of those Commonwealth standards, and the interaction between State decisions and Commonwealth supervisory action, could give rise to litigation under Commonwealth law. The Act itself does not record litigation.

Because the Act does not include a litigation history, any statement about actual cases, judicial reasoning, successful challenges, or patterns of litigation would require external research beyond the Act text. The Act, however, creates several statutory decision nodes,Board determinations, Minister final decisions on transition applicability, and Minister information demands,where disputes could arise and which could attract judicial review or other court proceedings in practice.

A number of operational and legal hazards are embedded in the Act’s mechanics and delegation of detail to regulations. These are matters that practitioners and administrators should note expressly because the Act structures discretion, oversight and risk in ways that create compliance, governance and operational consequences.

Broad statutory powers but concentrated discretion. The Board has very wide powers to acquire, dispose, borrow, secure assets, invest in any form and intermix Fund property (s 6(2); s 7; s 11). These broad powers are constrained primarily by the investment duty (s 8) and the requirement to comply with Commonwealth standards (s 6A). The Act leaves significant judgment to the Board on the terms of investment manager appointments, delegation, and insurance. That concentration of discretionary power requires robust internal governance and documentation because statutory constraints are principle‑based rather than prescriptive.
Borrowing power appears broad but is tightly constrained by purpose. Sections 6(3)(f)-(i) permit the Board to raise or borrow money and secure obligations, but s 6(4) limits borrowing to overcoming cash flow problems in paying benefits. Administrators may mistakenly rely on the list of borrowing powers without recognising the limiting purpose clause. Any borrowing for other purposes would be ultra vires the narrow statutory purpose in s 6(4).
No lending to members. The Act expressly prohibits lending Fund money to members (s 7(4)). This affects any proposals to structure member loans or home finance arrangements using Fund assets. Investment structures must avoid arrangements that have the legal effect of lending to members.
Delegation does not remove Board responsibility. Delegations must be in writing (s 13). A power exercised by a delegate in accordance with the instrument is deemed to have been exercised by the Board (s 13(2)). This legal deeming means the Board retains ultimate legal responsibility for delegated acts and must therefore carefully supervise delegates and ensure robust reporting from delegates, including the annual statements required by s 20(3).
Investment manager title may be in manager’s name. Section 14(3) permits registration of title in the name of an investment manager "in trust". That mechanism may create operational complexity in land or securities registration and requires clear trust documentation to evidence the Board’s beneficial interest.
Quorum and tied votes can create deadlock. The quorum requires at least four members with at least two appointed and two elected (Sch 2 cl 9(1)). An equality of votes is resolved in the negative and the chair has no casting vote (Sch 2 cl 8(5)-(6)). These arrangements can produce decision paralysis, particularly if appointed and elected members are entrenched in opposing positions. Alternate members and written resolutions (Sch 2 cl 7 and cl 10) reduce but do not eliminate deadlock risk.
Elected members’ eligibility dependency. Elected members who are elected as members of the Fund may vacate office automatically if they cease to be members of the Fund (Sch 2 cl 6(1)(g)). That linkage can create turnover and affect continuity of governance if membership rules or transfers change by regulation.
Limited express civil penalties. The only explicit monetary penalty in the Act is $500 for failure to disclose an interest (Sch 2 cl 11(1)). There is no express statutory fines regime for other governance breaches, misinvestment or failure to comply with duties within the Act. Enforcement relies largely on audit, removal powers, and Commonwealth supervisory reach where standards apply (s 6A). This structure may leave a gap between conduct that undermines members’ interests and specific state fines within the Act.
Minister’s information rights versus member confidentiality. Section 21 grants the Minister wide powers to obtain documents and copies; section 21A preserves confidentiality of member-identifying information unless authorised by law or by the member. Administrators must apply s 21 and s 21A together, redacting or excluding identifying information where appropriate, and document basis for disclosure; failure to do so may breach privacy expectations or the Act.
Regulations are central to benefits design. The Act delegates many of the substantive benefit design features to regulations , including whether pensions may be paid, the form and conditions of pensions, membership classes, contributions, the protection and adjustment of benefits and transfer rules (s 32(a), (b), (c), (ca), (d), (e), (p)). That delegation means the operational form of members’ rights depends on secondary law which may change over time, so legal advice must check the current regulations.
Ministerial finality in transitional matters. Schedule 3 clauses 3(1)-(3) transfer prior policies, agreements and proceedings into the new Fund framework, but clause 3(3) makes the Minister’s decision final on whether the clause applies to a particular instrument. That statutory finality warrants careful advance mapping of legacy instruments and proactive ministerial engagement for disputed instruments.
Indemnity for members in good faith. Schedule 2 clause 14 provides that no liability attaches to the Board or a Board member for acts or omissions done in good faith. That protection shifts risk onto the Fund and potentially limits personal accountability in contentious circumstances where "good faith" is disputed.
Schedule 1 oddity and amendment power. Schedule 1 lists the Board itself as a body that "may be associated employers" and includes unions and volunteer associations. The Governor may alter Schedule 1 by Gazette order (s 3(2)). The practical consequence is that affiliation and contribution obligations can be adjusted administratively at Governor level, affecting who bears contribution obligations.

Practitioners should therefore scrutinise delegation instruments, delegation reporting, regulations, actuarial reporting timelines, and the interface with Commonwealth standards. Those are the concrete operational and legal pitfalls that arise from the Act’s structure.

For boards, administrators and advisers implementing or supervising the Fund, compliance requires attention across governance, prudential, reporting and statutory interface tasks. The following steps map the principal compliance obligations and practical actions grounded in the Act.

Board constitution and meetings

Maintain the authorised membership structure. Ensure the Board comprises six members with three appointed by the FES Commissioner and three elected by members of the Fund (s 4(4)). Manage alternates properly as permitted (s 4(5)-(6); Sch 2 cl 7).
Observe quorum requirements. A quorum must include at least four members including at least two appointed and two elected (Sch 2 cl 9(1)). If vacancies make a quorum impossible, the remaining member(s) may act only for the limited purposes set out (cl 9(3)). Keep accurate attendance records to avoid unintended loss of quorum.
Record decisions and pecuniary disclosures. Enforce the disclosure regime of Schedule 2 clause 11. Record disclosures and exclude conflicted members from deliberation. Note the statutory penalty ($500) for failure to disclose. Ensure meeting minutes reflect disclosures and absences.
Manage deadlock risk. Given that a tied vote is resolved in the negative and the chair has no casting vote (Sch 2 cl 8(6)), prepare procedures for seeking written unanimous resolutions (Sch 2 cl 10) or convening alternate members to avoid paralysis.

Delegation, investment management and fiduciary duties

Delegate in writing only. Use formal written delegation instruments consistent with s 13. Ensure the instrument defines scope, reporting frequency, key performance indicators and compliance obligations with Commonwealth standards.
Ensure investment policy documents fund-first duty. Adopt and document an investment policy that demonstrates the Board and delegates have regard only to the best interests of the Fund and its members (s 8). Evidence how the policy aligns with this statutory duty.
Appoint qualified investment managers and monitor title arrangements. Execute appointments under s 14 with clear trust documentation where title is registered in an investment manager’s name (s 14(3)). Monitor conflicts of interest and ensure managers comply with investment mandates and reporting obligations.
Prohibit member lending. Do not structure investment products that have the legal effect of lending Fund money to a member; s 7(4) is an absolute prohibition.

Actuarial review and reporting

Appoint a qualified actuary. The actuary must be a Fellow of the Institute of Actuaries of Australia or equivalent (s 16(1)). Set terms and remuneration clearly (s 16(2)).
Conduct actuarial reviews on schedule. Commission a review at least every three years and ensure the actuary’s report is provided within 12 months of the valuation date or within any prescribed period (s 17(1), (3a)). Provide copies of the actuary’s report to the FES Commissioner and any associated employers (s 17(4)).
Use actuarial findings to manage contributions and benefits. Implement recommended adjustments, funding strategies or risk management steps in response to actuarial advice while documenting decisions and rationale.

Financial records, audit and accountabilities

Comply with State financial administration. Apply the Financial Management Act 2006 and Auditor General Act 2006 regimes as they apply to the Board (s 19A). Prepare accounts and reports in line with those Acts.
Obtain delegate statements annually. Where receipt or expenditure of money is delegated, procure from the delegate the full and true statement of account and statements of assets and liabilities annually as required by s 20(3).
Maintain complete member and beneficiary records. The Board must keep records of all members, deaths, and other matters necessary for proper administration (s 19).

Regulatory compliance and interactions

Align operations with Commonwealth standards. Ensure policies, investments, reporting and governance satisfy Commonwealth standards to the extent they apply to the Fund, and comply with any directions or requirements from the Commonwealth Commissioner under the Commonwealth Act (s 6A). Document compliance actions and correspondence with the Commonwealth Commissioner.
Monitor and apply regulations. Regulations may define membership classes, contributions, types of benefits (including pensions) and procedural rules (s 32). Maintain an up-to-date register of the regulations and their amendments, and ensure administrative systems reflect regulatory requirements.

Ministerial and Ministerial disclosure processes

Respond properly to Ministerial information requests. Under s 21 the Minister may request information and documents; the Board must comply. However, ensure member-identifying information is withheld or redacted in compliance with s 21A unless the disclosure is authorised. Build standard procedures for vetting and redaction before file release.
Prepare for parliamentary accountability. Because the Minister may use Board staff to obtain information (s 21(2)(c)), ensure roles and responsibilities for responding to parliamentary questions and estimates are clear and that responses are reviewed for confidentiality compliance.

Member engagement and meetings

Convene annual and special general meetings per s 29 and the prescribed procedures. Allow members to make recommendations (s 29(4)) and follow the regulations regarding notice, conduct and voting at general meetings (s 29(3), (5); s 32(k)).
Conduct elections per regulations. Whenever an elected member’s office is vacant or due to become vacant an election must be conducted in the prescribed manner (Sch 2 cl 2). Ensure election rules, campaign materials and voting methods comply with regulations.

Insurance and benefit design

Ensure insurance policies comply with regulations. The Board may effect insurance and pay premiums from the Fund (s 9), but may be prevented from doing so where policies do not comply with regulation (s 32(j)). Vet insurance terms for regulatory compliance and prudent risk transfer.
Coordinate benefit rules with regulations. Key benefit design elements, including pension conditions, are set by regulations (s 32(c), (ca)). Ensure pension calculation, eligibility and payment systems are implemented consistent with the regulations.

Transitional and legacy contract management

Map legacy instruments and claims. Under Schedule 3 assets, liabilities and existing policies are transferred to the Fund and Board (Sch 3 cl 2-3). Identify which instruments require ministerial confirmation under Sch 3 cl 3(3) and seek early ministerial determinations where ambiguity exists.
Preserve claim handling continuity. Schedule 3 preserves claims not finally dealt with before commencement (Sch 3 cl 4 and cl 9). Ensure legacy claims files are transferred, and communications with claimants explain continuity and administrative contacts.

Compliance governance and documentation

Adopt a compliance calendar. Include actuarial review deadlines, audit schedules, election timetables, general meeting dates and statutory reporting dates. Document decisions with reasons demonstrating fidelity to the "best interests" investment duty.
Train Board members and staff. Provide induction on fiduciary duties, disclosure requirements, restrictions on lending, confidentiality obligations under s 21A, and the interaction with Commonwealth standards.
Obtain legal and actuarial advice early. Use s 18 to obtain appropriate professional advice and document reliance on that advice where Board decisions involve complex or novel risk allocation.

These actions implement explicit statutory requirements in ss 5, 6, 6A, 7, 8, 9, 13-20, Schedule 2 and Schedule 3, and operationalise delegated regulatory detail under s 32. Legal advisors should routinely cross-check current regulations and any Commonwealth requirements that apply to the Fund.

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