Fire Brigades Superannuation Act 1985 (Western Australia)

The Fire and Emergency Services Superannuation Act 1985 establishes a statutory superannuation board and fund to provide superannuation and related benefits for certain firefighters, FES employees, former employees of predecessor authorities and specified associated employers and their employees. The Act creates the Fire and Emergency Services Superannuation Board (the Board) as a body corporate with its own seal and capacity to sue and be sued (s 4(1)-(3)), and establishes the Fire and Emergency Services Superannuation Fund (the Fund) as the vehicle for contributions, investments and payment of benefits (s 5(1)-(3)). The long title states the purpose: to provide superannuation and other benefits for persons employed for the purposes of the Fire and Emergency Services Act 1998, former employees of certain bodies, and employees of other prescribed bodies.

Mechanically the Act does the following.

Constitutes governance. The Board consists of six members, three appointed by the FES Commissioner and three elected by members of the Fund (s 4(4)). Alternate members may be appointed or elected (s 4(5)-(6)). Schedule 2 prescribes elections, terms of office, quorum, disclosure of interest, meeting procedure and indemnity provisions.
Creates the Fund and defines its composition. The Fund comprises member and employer contributions, property received for the Fund, investments, income and realisation profits (s 5(2)). Regulations may expand who is a member (s 5(4); s 32(a)).
Assigns functions and powers. The Board’s statutory function is to administer, invest and manage the Fund (s 6(1)). The Board may undertake a broad range of acts necessary or convenient to perform those functions, including contracting, acquiring and disposing of property, insuring risks, borrowing to meet cashflow and opening bank accounts (s 6(2)-(3), (4); s 7).

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 is organised around a small set of core legal concepts: the Board, the Fund, membership categories, governance and procedure, investment powers and constraints, actuarial oversight, regulatory interaction and transitional preservation of prior arrangements.

Board and Fund: The Board is the legal entity that administers the Fund (s 4(1); s 6(1)). The Fund is the repository for contributions, property and investment income and the source from which benefits, administration costs and Board allowances are paid (s 5(2)-(3)). The Board is explicitly given the powers of a corporate body and the powers of a trustee (s 4(2); s 10). That combination means the Board operates as a statutory corporate trustee with attendant responsibilities.

Membership: Membership is defined by regulation. The Act lists candidate groups that regulations may include: current and former eligible FES employees, associated employees, former Fire Brigades Board employees, former Authority employees and current or former spouses/de facto partners of those persons (s 5(4)). The Governor may amend Schedule 1 to change the list of bodies that can be associated employers (s 3(2); Schedule 1 lists several organisations). This two-tier approach leaves membership lines to subordinate regulation while embedding the mechanism in primary legislation.

Governance and representation: The Board has six members, evenly split between FES Commissioner appointees and member-elected members (s 4(4)). The FES Commissioner may also appoint up to three alternate members and members of the Fund may elect up to three alternates (s 4(5)-(6)). Schedule 2 contains detailed governance mechanics: terms of office (Sch 2 cl 3), election mechanics (Sch 2 cl 2), meeting procedure and quorum rules (Sch 2 cl 8-9), disclosure of interest with a pecuniary penalty (Sch 2 cl 11), and indemnity for members acting in good faith (Sch 2 cl 14). Quorum rules require at least four members with parity between appointed and elected members (Sch 2 cl 9(1)), but allow business in certain lower-quorum circumstances and provide for adjournment rules (Sch 2 cl 9(2)-(3)).

Investment powers and constraints: The Board may invest Fund assets in any form it considers suitable and may transpose or vary investments at will (s 7(1)-(2)). It may underwrite investments (s 7(3)), appoint investment managers and delegate investment powers (s 14), and insure risks (s 9). However, investment decision-makers must have regard only to the best interests of the Fund and its members (s 8). The statute prohibits lending Fund money to a member (s 7(4)). The Board may borrow or raise money, but s 6(4) restricts borrowing to overcoming cashflow problems in payment of benefits, "but for no other purpose". The Board may secure or mortgage Fund property to guarantee obligations (s 6(3)(h)) and may intermix assets with others where it considers necessary (s 11(b)).

Compliance and oversight: The Board must ensure the Fund complies with Commonwealth standards applicable under the Commonwealth Act and must comply with any requirement made by the Commissioner under that Act (s 6A(1)(a)-(b)), with s 6A(2) making that provision paramount over other Act provisions. The Board is required to appoint an actuary meeting specified professional standards (s 16) and conduct actuarial reviews at least every three years, with the actuary’s report provided to the FES Commissioner and associated employers (s 17). Financial administration and auditing obligations under the Financial Management Act 2006 and the Auditor General Act 2006 apply to the Board (s 19A), extending state financial oversight and audit to the Fund.

Decision-making and determinative powers: The Board has a broad discretion to determine questions concerning interpretation of the Act, members’ rights and management of the Fund (s 12). The Board may delegate any function or power in writing (s 13) and may act on professional advice from accountants, actuaries, lawyers and other experts (s 18). The Board’s determinative powers are therefore both internal (policy and administration) and capable of being shepherded to external professionals.

Information, confidentiality and ministerial access: The Minister (not the FES Commissioner) is entitled to request and obtain information possessed by the Board for parliamentary or public business purposes and may use Board staff and facilities to obtain it (s 21). Section 21A curtails that entitlement in relation to member or beneficiary-identifying information unless disclosure is authorised by another written law or by the member/beneficiary (s 21A(1)-(2)). The Act thus creates an express balance between administrative transparency to Ministers and confidentiality protection for individual member data.

Transitional arrangements: Schedule 3 transfers assets, liabilities, policies and pending proceedings from predecessor funds and boards to the present Board and Fund, preserves existing claims and empowers Ministers to determine certain questions as final (Sch 3 cl 2-4, 7-9). Those transitional rules effect legal continuity and protect rights already accrued under former schemes.

Regulatory architecture: The Governor may make wide-ranging regulations to implement membership, contributions, benefits (including pensions), transfers between funds, medical examinations and insurance requirements, and to prescribe procedures for meetings, elections and notices (s 32(a)-(p)). The Act therefore delegates many operational definitions to subordinate rules.

Taken together, the main concepts create a statutory corporate trustee regime subject to state financial oversight and Commonwealth superannuation standards, with member representation on the governing body, broad investment discretion constrained by a best-interests standard, actuarial oversight, and detailed procedural regulation to be made by the Executive.

The Act touches a defined set of actors whose rights, duties and liabilities are established or affected by its provisions. These are the primary and secondary groups that will experience legal and operational effects.

Members and beneficiaries: The most directly affected are members of the Superannuation Fund and persons who may be entitled to benefits. Regulations can define who is a member; the Act lists categories that regulations may include: current and former eligible FES employees, associated employees, former Fire Brigades Board employees, former Authority employees, and current or former spouses or de facto partners of those persons (s 5(4)). Beneficiaries are defined for confidentiality purposes (s 21A(3)). Members pay contributions and receive benefits from the Fund (s 5(2)-(3); s 32(b) permits regulation of contributions and benefits).

FES Commissioner and associated employers: The FES Commissioner appoints half of the Board (three members) and may appoint up to three alternate members (s 4(4)-(5)). The FES Commissioner therefore has significant appointment power and ongoing institutional involvement. The Commissioner may provide assistance to the Board in staff, facilities and services (s 31). Associated employers, those bodies listed in Schedule 1 and declared as such by regulation (s 3(2); Schedule 1 lists several entities), are liable to make employer contributions where prescribed; the Board must provide actuary reports to associated employers (s 17(4)). The Act expressly preserves associated employers’ employer-side employment rights, including in termination and liability calculations (s 27-28).

Board members, alternates and officers: Members appointed by the FES Commissioner, members elected by Fund members, and alternates are all affected. Schedule 2 prescribes terms of office (Sch 2 cl 3), vacancies and removal mechanics (Sch 2 cl 6), disclosure of interest and a penalty ($500) for non-disclosure (Sch 2 cl 11), meeting and quorum rules (Sch 2 cl 8-9), allowance mechanisms (Sch 2 cl 13), and an indemnity for actions in good faith (Sch 2 cl 14). The Board appoints its own secretary (s 15), an actuary (s 16) and may appoint investment managers (s 14).

Investment managers, insurers, advisers and delegates: The Board may appoint investment managers and delegate investment powers (s 14) and may obtain advice from accountants, actuaries, bankers, legal practitioners, medical practitioners, stockbrokers or other professionals (s 18). These providers will participate in managing assets and performing delegated functions. Delegates exercising delegated powers must provide annual accounts when they handle receipts or expenditures (s 20(3)). Investment managers may hold title in trust (s 14(3)).

Minister, Auditor General and Commissioner (Commonwealth): The Minister has access to Board information for parliamentary purposes and may use Board resources to obtain it (s 21); confidentiality protections limit disclosure of member/beneficiary information (s 21A). The Board is subject to financial administration and audit rules in the Financial Management Act 2006 and the Auditor General Act 2006 (s 19A), bringing the Auditor General and state financial governance mechanisms to bear. The Board must ensure compliance with Commonwealth standards and any Commissioner requirements under the Commonwealth Act (s 6A(1)), bringing in Commonwealth supervisory influence through the Commonwealth regulatory framework.

Members of predecessor schemes and claimants: Schedule 3 transfers assets, liabilities and operations from the previous funds and preserves existing claims so that persons who had claims under earlier arrangements continue to have those claims under the new Fund (Sch 3 cl 2-4; Sch 3 cl 7-9). That protects accrued rights of former employees and retirees.

Subscribers to the regulations: The Governor and regulators will affect bodies that may be declared associated employers (s 3(2); Schedule 1) and will determine the scope of contributions, pension rules, and membership continuity (s 32(a), (b), (ca)). Entities interested in becoming associated employers will be affected by rules about how to become and cease to be associated employers (s 32(d)).

Courts and creditors: The Board is a suable corporate entity and may guarantee, secure or mortgage Fund property (s 4(2)(c); s 6(3)(h)). That exposes Fund property to commercial transactions and potential claims in accordance with the Board’s powers.

In practical terms, who pays and who decides: contributions are paid by members and by the FES Commissioner and associated employers in respect of members as prescribed (s 5(2)(a); s 32(b) empowers regulation). Decision rights over Fund administration and investment rest primarily with the Board (s 6(1)-(3); s 12), subject to regulatory constraints and Commonwealth standards (s 6A), ministerial information access (s 21), and actuarial oversight (s 16-17).

Behavioural effects: employers and the Commissioner face contribution obligations and reporting requirements if prescribed (s 32(b); s 17(4)). Members gain statutory protections for accrued benefits and a voice through election of half the Board (s 4(4)(b)), but cannot expect employment guarantees (s 27). Investment managers and advisers can expect delegated authority but with a statutory duty that investment decisions be made in the Fund’s and members’ best interests (s 8), and must deliver account statements if handling receipts and expenditures (s 20(3)).

This section extracts the Act’s principal positive duties and rights, citing the controlling provisions, and summarises what the Board, employers and members must and may do.

Duties of the Superannuation Board

Administer, invest and manage the Fund. The Board’s primary statutory duty is to administer, invest and manage the Superannuation Fund (s 6(1)). That is the core operational obligation.
Act in the Fund’s best interests when investing. The Board and any delegate undertaking investment must have regard only to the best interests of the Fund and its members in making every investment (s 8).
Ensure compliance with Commonwealth standards. The Board “shall ensure” compliance with Commonwealth standards as they apply to the Fund and comply with any requirement by the Commissioner under the Commonwealth Act (s 6A(1)(a)-(b)); s 6A(2) makes that provision operative notwithstanding any other provision of the Act.
Conduct actuarial reviews. The Board must appoint an actuary of specified professional standing (s 16) and call an actuarial review no later than three years after commencement and thereafter at intervals not more than three years (s 17(1)). The actuary must report to the Board within 12 months after the date as at which the review was made, or as otherwise prescribed (s 17(3a)).
Record keeping and reporting. The Board must keep complete records of members, deaths and other matters necessary for proper administration (s 19). It must comply with the Financial Management Act 2006 and the Auditor General Act 2006 insofar as they regulate financial administration, audit and reporting of statutory authorities (s 19A). It must provide actuarial reports to the FES Commissioner and associated employers (s 17(4)).
Administration of elections and meetings. The Board must conduct elections for elected members in the prescribed manner (Schedule 2 cl 2) and call an annual general meeting of members and any special meetings as requested by at least 5% of members (s 29(1)-(2)).
Maintain confidentiality and respond to Ministerial requests. The Board must provide information to the Minister on request for parliamentary purposes or to conduct the Minister’s public business (s 21(1)-(3)), but must not disclose member- or beneficiary-identifying information in breach of the confidentiality protections (s 21A).
Ensure delegates provide accounts. If the receipt or expenditure of money is delegated, the Board must obtain from the delegate a full statement of accounts annually (s 20(3)).

Rights and powers of the Superannuation Board

Corporate rights. The Board is a corporate body with a common seal and capacity to sue and be sued (s 4(2)-(3)).
Investment and property powers. The Board may invest assets in any suitable form, vary or transpose investments, underwrite investments, acquire and dispose of property, grant and take options, lease or hire property, postpone realisation of assets and expend funds on development (s 7; s 6(3)(c)-(l)).
Borrowing and securing obligations. The Board may raise or borrow money and secure performance by creating securities over Fund property, but borrowing is constrained to cashflow purposes for benefit payments (s 6(3)(f)-(h); s 6(4)).
Insure or re-insure Fund risks. The Board may, subject to regulations, effect and maintain policies of insurance to provide for benefit components and pay premiums from the Fund (s 9(1)-(2)).
Delegation and appointment powers. The Board may delegate powers and duties in writing (s 13) and appoint investment managers on terms it thinks fit, delegating investment powers to them (s 14).
Determinative power. The Board shall determine questions or issues of doubt about interpretation of the Act, members’ rights and the Fund’s management (s 12).
Freedom to obtain and rely on expert advice. The Board may obtain and act on professional advice from advisers irrespective of whether the Board requested it (s 18).
Indemnity. Members of the Board (and the Board itself) have statutory indemnity for acts or omissions done in good faith in the exercise of powers and duties (Sch 2 cl 14).

Duties and rights of members and employers

Contributions and benefits. Members pay contributions and the Fund receives contributions from members, the FES Commissioner and associated employers (s 5(2)(a)). Regulations may prescribe contribution rates and benefit arrangements (s 32(b), (c), (ca)).
Election rights. Members of the Fund elect three of the six Board members and may elect alternates (s 4(4)(b); s 4(6)).
Meeting and recommendation rights. Members have the right to attend annual general meetings and, subject to regulation, to make recommendations to the Board (s 29(1), (4)).
Preservation of employment-related claims. The Act expressly preserves members’ rights in relation to compensation or damages for employment matters and provides that benefits under the Fund do not affect quantum of damages in employment termination actions (s 27-28).

Constraints on conduct

No lending to members. The Board shall not lend Fund money to a member directly or by arrangement (s 7(4)).
Best interests duty for investments. Both Board and delegates undertaking investment must have regard only to the best interests of Fund and members (s 8).
Compliance with Commonwealth standards. The Board must ensure compliance with Commonwealth standards and requirements (s 6A). That creates an external regulatory constraint with potential reporting or remedial consequences via the Commonwealth Commissioner.

Procedural obligations and penalties

Disclosure of pecuniary interest. Board members must disclose direct or indirect pecuniary interests at meetings and must not participate in deliberation/decision; failure to disclose can attract a $500 penalty (Sch 2 cl 11(1); (2) requires recording the disclosure).
Meeting quorums and voting. Quorum rules require four members, at least two appointed and two elected (Sch 2 cl 9(1)); tied votes are resolved as negative and the chair has no casting vote (Sch 2 cl 8(5)-(6)).

Overall the Act creates a framework of substantive rights and duties allocating operational control to the Board subject to statutory duties to act in members’ best interests, comply with Commonwealth standards, provide regular actuarial scrutiny and record-keeping, and permit member participation through elections and meetings.

The Act contains a limited set of express penalties and several mechanisms by which compliance is enforced through administrative and oversight channels rather than by a broad set of criminal sanctions. Enforcement is effected through statutory duties, external audit and reporting obligations, fiduciary-style liability exposure, and the ability of courts to supervise relevant disputes.

Express penalties

Disclosure of interest: The only express pecuniary penalty in the Act is for failure to disclose a direct or indirect pecuniary interest by a Board member. Under Schedule 2 clause 11(1), a member who fails to disclose must not participate in deliberation or decision, and the clause lists a penalty of $500 for non-disclosure. The clause also requires that any disclosure be recorded in the minutes (Sch 2 cl 11(2)).

Statutory enforcement and oversight

Financial reporting and audit: Section 19A brings the Financial Management Act 2006 and the Auditor General Act 2006 into play. Those Acts contain enforcement mechanisms, audit powers, reporting obligations and responses to non-compliance that apply to statutory authorities. The Board therefore becomes subject to the Auditor General’s audit function, parliamentary reporting and state financial administration oversight. The Board’s compliance will be assessed under the frameworks and sanctions available via those Acts.
Commonwealth supervision: Section 6A requires the Board to ensure compliance with Commonwealth standards and to comply with any requirement made by the Commissioner under the Commonwealth Act. Although the Act does not itself prescribe Commonwealth enforcement steps, compliance is made mandatory. The Commonwealth Act and Commissioner’s powers under it could, in practice, give rise to regulatory action or directions, providing an enforcement channel external to this Act.
Ministerial and parliamentary oversight: Section 21 entitles the Minister to request information and documents for parliamentary or Ministerial public business and to use Board staff and facilities to obtain it. The Board must comply with requests (s 21(3)). This creates a mechanism for ministerial scrutiny and, indirectly, political accountability. Section 21A restricts disclosure of member-identifying information except where authorised by law or the member (s 21A(2)), calibrating the Minister’s access.
Civil liability and trust law consequences: The Board has the powers of a trustee (s 10); trustees may be exposed to civil claims for breach of trust or fiduciary duty under general law. The Act preserves the Board’s legal personality and allows it to be sued (s 4(2)(c)), so members and beneficiaries can seek remedies in the courts for breaches relating to management or investment of the Fund. The statutory indemnity in Sch 2 cl 14 prevents liability for acts or omissions in good faith, but does not immunise negligent or bad faith conduct.
Determinative powers with finality in transitional matters: Schedule 3 provides that certain questions about whether particular policies, agreements or proceedings fall within transitional transfer provisions shall be determined by the Minister and that decision is final (Sch 3 cl 3(3); Sch 3 cl 8(3)). For those transitional issues the Minister’s determination is final and non‑reviewable by the Act’s text, reducing litigable disputes in that narrow transitional area.
Internal governance sanctions: Schedule 2 provides removal powers: the FES Commissioner may remove appointed members for inability, inefficiency or misbehaviour (Sch 2 cl 6(2)), and elected members may be removed in accordance with regulations (Sch 2 cl 6(3)). Removal is a governance sanction for misperformance.

Practical enforcement pathways and likely remedies

Audit reports: Non-compliance with financial management or reporting obligations will be recorded by Auditor General reports and can trigger remedial requirements by the responsible Minister, scrutiny by Parliament and reputational risk. Those reports may lead to recommendations or directions under the Financial Management Act framework.
Civil litigation: Members or beneficiaries may sue for breaches of trust, breach of statutory duty or misapplication of Fund assets. The Board’s power to determine interpretation issues does not necessarily oust judicial review or common law remedies where statutory powers are exceeded or fiduciary duties are breached; however, indemnity protects good faith acts (Sch 2 cl 14).
Administrative directions under Commonwealth Act: If the Fund falls within the regulatory reach of the Commonwealth Act, the Commissioner under that Act may have powers to require compliance, and failure to meet Commonwealth standards could trigger directions, enforceable penalties or remedial steps under Commonwealth law where applicable.

Limits on enforcement in the Act

Few criminal sanctions. The Act does not create a broad suite of criminal penalties for mismanagement or misconduct; enforcement is predominantly administrative and civil.
Ministerial finality for transitional questions. The Minister’s final decision in transitional disputes is non-judicial under the Act (Sch 3 cl 3(3) and cl 8(3)), narrowing judicial oversight of those specific matters.
Indemnity for good faith. Schedule 2 clause 14 limits exposure for Board members for acts or omissions done in good faith, which narrows the practical scope for successful personal liability claims against members who acted without bad faith.

In sum, the Act enforces compliance chiefly through external financial audit and reporting regimes (s 19A), Commonwealth superannuation compliance duties (s 6A), civil rules derived from trustee and fiduciary law (s 10; Sch 2 cl 14), and governance mechanisms including removal powers and disclosure obligations (Sch 2 cl 6; cl 11). The express penalty regime in the Act itself is limited to the disclosure obligation.

The Act is constructed to operate in a layered regulatory environment. It integrates and defers to Commonwealth superannuation law, incorporates state financial oversight frameworks, references pre-existing fire service statutes, and leaves many operational matters to regulations. The principal interaction points are these.

Commonwealth superannuation regulation: The Act defines Commonwealth Act to mean the Superannuation Industry (Supervision) Act 1993 or another prescribed Commonwealth Act and defines Commonwealth standards accordingly (s 3 definitions). Section 6A imposes a positive duty on the Board to ensure the Fund complies with the Commonwealth standards so far as they apply, and to comply with any requirement made in relation to the Fund by the Commissioner under the Commonwealth Act. Section 6A(2) states that the section has effect notwithstanding any other provision of this Act, giving precedence to Commonwealth standards where they apply. Practical consequence: investment, governance and disclosure regimes effective under Commonwealth law may bind the Board, and the Board must adjust its policies to remain consistent with Commonwealth requirements. The Act does not itself set out enforcement measures from the Commonwealth Act, but the obligation imports those obligations into the Board’s compliance architecture.

State financial administration and audit laws: Section 19A makes the Financial Management Act 2006 and the Auditor General Act 2006 apply to the Board’s financial administration, audit and reporting. Those Acts establish processes for annual reporting, audit scrutiny and compliance measures overseen by the Auditor General and the Treasurer. This moves the Board into the same state financial governance regime that applies to statutory authorities, with the attendant reporting and audit obligations.

Fire and Emergency Services Act 1998 and predecessor legislation: The Act’s definitions reference the Fire and Emergency Services Act 1998 and the Fire Brigades Act 1942 for terms such as Authority, FES Commissioner and firefighter (s 3). The long title and many provisions are tied to employment under those statutes. The Act also implements transitional transfers from earlier Fire Brigades Superannuation arrangements via Schedule 3, and includes provisions preserving rights from prior regulations and entrusting the Minister with final decisions about certain transitional applications (Sch 3 cl 2-4, cl 7-9; cl 3(3), cl 8(3)).

Corporations Act and insolvency rules: Schedule 2 clause 6(d) provides that a member’s office becomes vacant if he becomes an "insolvent under administration" within the meaning of the Corporations Act 2001 (Cth). This links Board membership consequences to Federal corporate insolvency definitions and thereby imports relevant external law into the Board’s governance mechanisms.

Regulations and subordinate instruments: Section 32 confers broad regulation-making powers. Regulations can specify membership classes, contribution rules, benefits including pensions, continuity of membership and the mechanics for associated employers to become or cease to be associated employers (s 32(a)-(d), (ca)). The Act thus defers substantive operational detail to regulations which will interact with the Act to shape entitlements and obligations.

Public law and administrative law principles: While the Act vests determinative powers in the Board to interpret the Act and determine rights (s 12), and provides the Minister with final decision-making for specified transitional questions (Sch 3 cl 3(3); cl 8(3)), public law principles such as procedural fairness and judicial review may still be relevant where a statutory power is exercised beyond the Act’s scope. The Act does not expressly oust judicial review in relation to Board determinations; however, certain transitional determinations are made final by the Minister under the Act.

Trust and fiduciary law: The Act expressly confers trustee powers on the Board (s 10). That subjects the Board’s conduct to trust law duties and potential civil liability for breaches of trust or fiduciary obligations, constrained by the statutory indemnity (Sch 2 cl 14). Where the Act and trust duties differ, s 6A's "notwithstanding" clause could require the Board to prefer Commonwealth standards over internal practice, but trust principles remain a cross-cutting influence on conduct.

Privacy and confidentiality laws: Section 21A protects member and beneficiary-identifying information from Ministerial disclosure except where authorised by other written law or by the member/beneficiary. Those protections must be read in light of state privacy legislation and Commonwealth privacy obligations where applicable; the Act sits alongside those regimes and provides statutory confidentiality rules for ministerial access.

Employment law: Sections 27 and 28 explicitly state that the Act does not affect employers’ powers and liabilities in respect of employment termination and does not affect members’ claims for damages or compensation arising from employment. These provisions preserve existing employment law rights and liabilities and clarify that Fund benefits are separate from remedies for employment disputes.

In short, the Act positions the Board and Fund within a network of state and Commonwealth laws: it imports Commonwealth superannuation standards and related obligations, subjects the Board to state financial administration and audit laws, links governance mechanics to corporate insolvency definitions under the Corporations Act, preserves employment law rights, and leaves many operational details to regulations. Practitioners must therefore consider a cross-jurisdictional compliance matrix when advising the Board, employers or members.

The Act has been amended several times since its original enactment in 1985. The compilation table in the text records amendments, commencement dates and reprints. The following lists the primary amendments recorded in the compilation table and relevant notes from the Act as compiled.

Fire Brigades Superannuation Act 1985 (No. 87 of 1985), assented 4 December 1985, commenced 3 November 1986 (s 2; Gazette 24 Oct 1986 p. 3938). This is the original Act that established the scheme in primary form.
Acts Amendment (Financial Administration and Audit) Act 1986 (No. 4 of 1986), assented 27 June 1986, commenced 1 July 1986. This amendment reflected financial administration changes and resulted in early procedural adjustments.
Fire Brigades Superannuation Order 1987 (Gazette 14 Aug 1987 p. 3163) and Fire Brigades Superannuation (Associated Employer) Order 1988 (Gazette 18 Nov 1988 p. 4532) effected subordinate matters including associated employer designations and dates for their effect.
Fire Brigades Superannuation Amendment Act 1992 (No. 19 of 1992), assented 16 June 1992, commenced 16 June 1992. This inserted s 6A (compliance with Commonwealth standards) and other technical changes (see s 6A inserted: No. 19 of 1992 s. 6).
Fire Brigades Superannuation Amendment Act 1994 (No. 26 of 1994), assented 23 June 1994, with parts commencing 29 June 1994 and other parts 1 July 1994. Part 3 of that Act contained transitional provisions; the compilation notes include the full text of that Part (see compilation notes).
Trustees Amendment Act 1997 (No. 1 of 1997), s 18, assented 6 May 1997, commenced 16 June 1997. This made amendments relevant to trustee powers and governance in trust contexts, reflected in revised powers (e.g. Sch 2 updates).
Statutes (Repeals and Minor Amendments) Act 1997 (No. 57 of 1997), assented 15 December 1997, commenced 15 December 1997; included minor formatting and repeal matters.
Fire and Emergency Services Authority of Western Australia (Consequential Provisions) Act 1998 (No. 42 of 1998), s 38, assented 4 November 1998, commenced 1 January 1999. This replaced references to the Fire Brigades Board with the Authority and made other consequential amendments to tie the Act into the restructured emergency services architecture (see s 3 definitions and the note on Authority).
Corporations (Consequential Amendments) Act 2001 (No. 10 of 2001), s 221, assented 28 June 2001, commenced 15 July 2001; this amendment linked Board membership consequences to the Corporations Act insolvency regime (Sch 2 cl 6(d)).
Fire and Emergency Services Legislation Amendment Act 2002 (No. 38 of 2002), Part 5, assented 20 November 2002, commenced 30 November 2002. This Act introduced multiple amendments including renaming and continuity provisions (s 4(1a); s 5(1a)) and inserting Schedule 1 listing certain bodies that may be associated employers.
Financial Legislation Amendment and Repeal Act 2006 (No. 77 of 2006), s 17, assented 21 December 2006, commenced 1 February 2007. This amendment inserted s 19A bringing the Financial Management Act 2006 and the Auditor General Act 2006 into application for the Board.
Standardisation of Formatting Act 2010 (No. 19 of 2010), s 4, assented 28 June 2010, commenced 11 September 2010. Formatting and technical standardisation amendments.
Fire and Emergency Services Legislation Amendment Act 2012 (No. 22 of 2012), Part 5, assented 29 August 2012, commenced 1 November 2012. Among other things this amendment updated definitions (s 3), added references to the Fire and Emergency Services Act 1998 and made related consequential changes (s 3 definitions; ss 4, 5, 6 amendments).

Reprints: The compilation table records reprints as at 15 February 2002 and 16 February 2007 that included the amendments up to those dates.

Notes and consequences from amendment history

The insertion of s 6A in 1992 gives Commonwealth superannuation standards primacy as to the Board’s obligations. That is a substantive compliance tightening reflecting national regulatory shifts in superannuation governance.
The 1998 consequential amendments followed restructuring of fire services governance in Western Australia and updated references to the Authority and FES Commissioner.
The 2006 insertion of s 19A integrated the Board with the state’s modern financial reporting and audit framework, increasing external oversight.
The 2012 amendments updated definitions and adapted the Act for contemporary administrative structures under the Fire and Emergency Services Act 1998.

Where amendments are recorded as deleted provisions (for example parts and sections noted as deleted in the text), those deletions remove obsolete operational provisions and leave the later structure in force. The compilation table provides statutory references for those amendments. Practitioners should consult the specific amending Acts and reprint notes cited in the compilation table for detail on how particular provisions were altered.

The Act’s text and compilation materials do not record any court decisions or litigation history. The statute itself preserves certain transitional claims from predecessor arrangements and provides mechanisms that affect potential litigation.

Preserved claims and transitional litigation pathways: Schedule 3 expressly preserves claims for benefits under former regulations and provides that any claim not finally dealt with before the commencement of the Act may be proceeded with and dealt with as a claim under the present Act (Sch 3 cl 4; cl 9). Policies, agreements and instruments that existed before the Act and related to the administration of former regulations were to subsist and enure for the purposes of the new Fund, with the Superannuation Board substituted for the Fire Brigades Board as a party where appropriate (Sch 3 cl 3(1), cl 8(1)). Pending proceedings could be continued with the Superannuation Board substituted as party (Sch 3 cl 3(2); cl 8(2)). Those provisions preserve litigants’ rights and minimise disruption to ongoing litigation.

Ministerial finality on certain transitional questions: The Schedule gives the Minister the power to determine whether specific provisions apply to particular policies, agreements, instruments or proceedings, and declares that the Minister’s decision is final (Sch 3 cl 3(3); Sch 3 cl 8(3)). This narrows the availability of judicial review for those particular transitional matters insofar as the Act makes the Minister’s decision final.

Absence of case citations: The statute as provided does not list any cases or judicial interpretations. There is no internal litigation history in the Act text or compilation notes. Practitioners seeking precedent on statutory interpretation, fiduciary duties imposed by the Act, interaction with the Commonwealth Act or consequences of s 6A obligations would need to search judicial databases and administrative tribunal records for any decisions concerning the Board or Fund; none are provided in the legislation text itself.

Practical implications for litigators and advisers

Preservation of rights: The transitional provisions preserve claims and ensure continuity, which reduces argument that historical entitlements were extinguished. Advisers should check Schedule 3 when handling any claim that began under predecessor arrangements.
Ministerial determinations: Where a dispute concerns whether a transitional provision applies to a particular instrument or proceeding, the Act assigns final decision-making to the Minister. That raises strategic considerations about administrative remedies, prospective judicial review limits and whether alternative legal avenues exist to challenge a Ministerial determination.
Potential for trust and fiduciary litigation: Because the Board is given trustee powers (s 10) and must act in members’ best interests (s 8), standard trust-fiduciary causes of action remain available for alleged breaches of duty. Claims will proceed in court, subject to the statutory indemnity for good faith acts (Sch 2 cl 14). The Act’s limited express penalty regime means remedies will largely be civil.
Interaction with Commonwealth law: Section 6A requires compliance with Commonwealth standards; disputes about whether the Board complied with Commonwealth requirements could engage federal regulatory processes and potentially Commonwealth enforcement mechanisms. Litigation may arise from that intersection where the Commonwealth regulator exercises powers under the Commonwealth Act.

In sum, the Act itself records no litigation history. It preserves pre-existing claims, assigns some transitional finality to Ministerial determinations, and establishes a legal environment in which civil actions for fiduciary breach and compliance matters governed by Commonwealth and state supervisory regimes are the primary litigation pathways.

The Act contains several provisions and structural features that can create practical traps or points of legal and operational risk if overlooked. These are items to flag for trustees, sponsors, members and advisers because they alter risk allocation, impose constraints or create unexpected discretion.

s 6A gives primacy to Commonwealth standards

The Board must ensure compliance with any Commonwealth standards that apply and comply with requirements from the Commonwealth Commissioner (s 6A(1)(a)-(b)); s 6A(2) makes that provision effective notwithstanding any other provision of the Act. Practically, the Board cannot rely solely on state law comfort. If a practice complies with the Act but conflicts with Commonwealth standards, the Board must follow Commonwealth standards. Failure may attract external regulatory supervision under the Commonwealth Act.

Broad investment powers but a restricted borrowing purpose

The Board may invest in any form it considers suitable (s 7(1)), appoint investment managers (s 14), and even underwrite investments (s 7(3)). At the same time the Board’s power to raise or borrow money is limited to overcoming cashflow problems in the payment of benefits (s 6(4)), and the Board must not lend Fund money to a member (s 7(4)). That means while investment flexibility is high, use of leverage is constrained in purpose. Mischaracterising borrowing for strategic reasons (rather than cashflow) could exceed authorised powers.

Intermingling of assets and loss of sole control risk

Clause 11 permits the Board to act jointly with others and to intermix Fund property with other property (s 11(b)). This may expose the Fund to co-mingling and weaken ring-fencing of Fund assets. The Board should document any intermingling arrangements and consider trust/accounting separations and legal title arrangements, including registering property in the name of an investment manager in trust (s 14(3)).

Quorum and tie-vote mechanics can stall or defeat measures

The quorum requires at least four members including at least two appointed and two elected members (Sch 2 cl 9(1)). If a quorum is not achieved after two adjournments, the present members may constitute a quorum despite the initial requirement (Sch 2 cl 9(2)). Tie votes are resolved against the motion and the chair has no casting vote (Sch 2 cl 8(5)-(6)). Practically, this can block measures that require majority support and risk deadlock if membership composition is split or alternates absent. Meeting planning and alternate member arrangements should be well managed.

Disclosure of interest penalty is small but process-critical

Failure to disclose a pecuniary interest attracts a $500 penalty (Sch 2 cl 11(1)). Although the monetary penalty is modest, non-disclosure may invalidate decisions, create reputational risk and form the basis for removal for misbehaviour (Sch 2 cl 6(2)). The Board must maintain accurate minutes and a robust conflicts register (Sch 2 cl 11(2); s 19 requires record-keeping).

Ministerial access to information vs confidentiality

The Minister may request and obtain information and documents held by the Board for parliamentary purposes or Ministerial public business and can use Board staff to obtain information (s 21(1)-(3)). However, s 21A restricts disclosure of member-identifying information unless authorised by law or the member. The Board must implement processes to respond to Ministerial requests while safeguarding personal data and complying with s 21A.

Regulations shape membership and benefits

The Act leaves many substantive matters to regulation, including who is a member (s 5(4)), contribution rules (s 32(b)), and pension rules (s 32(ca)). That means legal entitlements can be materially shaped at the subordinate level. Those drafting or advising on regulatory instruments should note that heavy reliance on regulations creates legal uncertainty for members until regulations are settled.

Minister has final decision on transitional questions

For certain transitional matters under Schedule 3, the Minister’s determination is final (Sch 3 cl 3(3); cl 8(3)). That limits avenues for judicial review on those specific questions and can alter litigation strategy for disputes about whether a particular policy or proceeding was captured by the transition.

Indemnity does not eliminate liability for bad faith

Schedule 2 clause 14 indemnifies members for acts or omissions in good faith. That does not protect conduct undertaken in bad faith, recklessness, or in breach of statutory duties (including s 6A). Board members must obtain professional advice and observe governance processes to ensure protection under the indemnity.

Transfer provisions bind Fund to predecessor liabilities

Schedule 3 transfers assets and liabilities from predecessor funds and makes the Superannuation Board the owner of registers and records (Sch 3 cl 2; cl 21). That means the Fund inherits contingent liabilities and obligations from earlier schemes. Due diligence when managing legacy liabilities is essential, as is careful handling of records.

Acts preserved rights to damages and employment remedies

Sections 27 and 28 emphasise that Fund membership does not guarantee continued employment and that benefits do not affect employment-related damages. Advisers must ensure members understand the Fund is separate from employment rights.

Annual accounts from delegates must be obtained

When the Board delegates receipt or expenditure of money, s 20(3) requires procurement of a full statement of accounts from the delegate as soon as practicable after year end. Failure to secure these statements undermines audit and financial reporting obligations (s 19A) and can lead to non-compliance findings.

These provisions create a legal environment where wide powers are balanced by specific statutory constraints and multiple oversight regimes. The “gotchas” are largely operational: misusing borrowing power, misunderstanding the effect of s 6A, inadequate conflict disclosure and record-keeping, and under-preparing for Ministerial or Auditor General scrutiny.

This section provides an actionable checklist and compliance roadmap grounded in the Act’s provisions. It identifies immediate steps for an operational Board, the FES Commissioner and associated employers to meet statutory obligations and to manage risks noted earlier.

Governance and membership compliance

Ensure Board composition matches the statutory model. Appointments by the FES Commissioner and elections by Fund members must meet s 4(4) and Schedule 2 election provisions. Maintain appointment instruments that specify terms up to three years for appointed members (Sch 2 cl 3(1)(a)) and adhere to term mechanics for elected members (Sch 2 cl 3(1)(b)).
Publish appointment and election notices in the Gazette as required (Sch 2 cl 5).
Implement processes for nomination and use of alternate members as set out in Schedule 2 cl 7 to prevent quorum failures.

Records, minutes and conflicts management

Keep complete records of all members, beneficiaries, deaths and administrative matters per s 19. Make sure registers and records are secure, indexed and accessible for audit.
Maintain detailed minutes of Board meetings and ensure any disclosure under Sch 2 cl 11 is recorded in the record of proceedings.
Operate a written conflict of interest policy aligned with Sch 2 cl 11. Require timely written disclosure of pecuniary interests and refraining from deliberation where required.

Investment policy and delegation

Adopt a formal investment policy that operationalises s 8: all investments must be made with sole regard to the best interests of the Fund and its members. Document decision-rationale for each major investment to evidence compliance with the best-interests standard.
Use formal delegation instruments when appointing investment managers (s 14) or delegating any powers (s 13). Ensure delegations are in writing, specify scope, reporting requirements and include the requirement for delegates to provide annual accounts where they handle receipts or expenditures (s 20(3)).
Do not lend Fund money to members (s 7(4)). If contemplating lending-based structures, seek legal advice to confirm compliance.

Borrowing and securities

Restrict borrowing strictly to cashflow needs in payment of benefits in accordance with s 6(4). Document assessments showing the cashflow problem and need to borrow.
When securing obligations against Fund property, ensure the Board’s resolution records the rationale, the terms of security and the legal power relied upon (s 6(3)(h)).

Actuarial reviews and appointments

Appoint an actuary who is a Fellow of the Institute of Actuaries of Australia or successor body (s 16(1)). Set the appointment terms and remuneration clearly (s 16(2)).
Schedule actuarial reviews at intervals not more than three years from commencement and ensure the actuary receives necessary information in time to meet reporting deadlines (s 17(1)-(3a)). Provide copies of actuarial reports to the FES Commissioner and associated employers (s 17(4)).

Insurance and benefits design

If the Board elects to insure benefits, ensure policies comply with any regulatory requirements and regulations may prevent maintaining non-compliant policies (s 9(1); s 32(j)). Pay premiums from the Fund as authorised (s 9(1)(b)).
Use s 32 to implement pension provisions if required (s 32(ca)). Ensure any pension-type benefits are clearly captured by regulations and administered in line with actuarial recommendations.

Financial administration and audit

Integrate Fund finance with the Financial Management Act 2006 and Auditor General Act 2006 requirements under s 19A. Prepare annual financial statements and facilitate timely external audits.
Obtain annual accounts and statements from any delegates handling receipts or expenditures per s 20(3). Keep these statements for audit and financial reporting purposes.

Ministerial requests and confidentiality

Develop procedures to respond to Ministerial information requests under s 21 that comply with s 21(2)-(3) while protecting member and beneficiary identifying information under s 21A. Ensure redaction protocols and authorisation checks are in place before releasing personal data.
Train staff on information privacy obligations and on the narrow scope for disclosure to the Minister where member consent or other written law authorisation is absent.

Meetings, elections and member engagement

Hold annual general meetings and respond to requests for special general meetings from at least 5% of members (s 29(1)-(2)). Follow the prescribed procedures for holding meetings (s 29(5); s 32(k)).
Run elections for elected Board members in the prescribed manner (Sch 2 cl 2) and ensure continuity planning for vacancies (Sch 2 cl 6-7).

Regulatory compliance and monitoring

Monitor developments in the Commonwealth Act and any prescribed Commonwealth standards and implement compliance processes for responding to Commissioner requirements under the Commonwealth Act (s 6A(1)(b)).
Track changes to state regulations under s 32 and participate in rule-making where necessary; regulatory instruments will define membership, contributions, benefits, medical examination requirements and insurance parameters (s 32(a)-(j), (l), (p)).

Legacy and transitional matters

For funds or benefits arising from predecessor schemes, ensure documentation transferred under Schedule 3 is captured and that actions taken under those instruments are correctly recorded as applying to the new Board and Fund (Sch 3 cl 2-3). Where ambiguous coverage arises, note that certain transitional determinations by the Minister are final (Sch 3 cl 3(3); cl 8(3)).

Legal and compliance advice

Maintain ongoing legal, actuarial and financial advisory arrangements (s 18). Document advice and how the Board acted on it to establish that decisions were made in good faith and in accordance with professional guidance, supporting indemnity protections (Sch 2 cl 14).

Practical implementation checklist , first 12 months

Confirm Board appointments and elections are lawful; publish Gazette notices (Sch 2 cl 5).
Appoint an actuary meeting s 16; commission baseline actuarial review.
Adopt written investment policy and delegation framework (s 7; s 8; s 13-14).
Register with Treasury/finance for compliance with s 19A and establish audit timetable.
Implement conflicts register and minutes protocol; train Board members on disclosure duties (Sch 2 cl 11).
Put in place records management and data protection to meet s 19 and s 21A obligations.
Review all transferred policies, contracts and pending proceedings under Schedule 3; seek Ministerial clarification where ambiguous.
If borrowing is contemplated, prepare a written cashflow forecast justifying borrowing strictly for benefits payments (s 6(4)).
Confirm insurance policies comply with any regulations and are acceptable under s 9.
Review and plan for compliance with Commonwealth standards; document how each standard is met or why not applicable (s 6A).

Following these steps aligns operational practice with statutory duties, documents compliance positions for audits or regulatory review, and reduces the risk of inadvertent breaches or administrative failures.

Deep Dive

What it does

Current sections