Gold Corporation (Policy Instruments) Regulations 2009

The regulations revolve around two distinct but linked planning instruments. The strategic development plan (SDP) is a five-year forecast covering Gold Corporation and each of its subsidiaries. It must set out economic and financial objectives and operational targets, and how they will be achieved (reg 6(1)). In preparing it, the Board must consider competitive strategies (where appropriate), pricing of products, productivity levels, financial requirements, capital expenditure and personnel requirements (reg 6(2)). These are mandatory considerations, not a mere checklist. The SDP is not a public document; unlike the statement of corporate intent, there is no requirement to table it in Parliament.

The statement of corporate intent (SCI) covers a single financial year and must be consistent with the SDP (reg 16(1)). It must include performance targets and measures for judging performance, an outline of objectives, the nature and scope of proposed functions, main undertakings, dividend policy, accounting policies, and the type of information to be given to the Minister in annual reports or otherwise (reg 16(2)). The Minister may exempt the Board from including any matter or aspect of a matter (reg 16(3)). This exemption power is notable: it allows the government to remove accountability requirements selectively, potentially reducing the information available to Parliament and the public.

The concept of agreement is central but the regulations do not define what constitutes reaching agreement. Both the Board and Minister must “endeavour” to reach agreement as soon as possible, and in any event not later than the start of the next financial year (regs 7 and 17). The word “endeavour” imports a duty of genuine effort but no guarantee of outcome. If agreement is not reached, the Act effectively empowers the Minister to dictate the content via direction (regs 8(3), 11(2), 18(3), 21(2)). The default to the latest draft (regs 9, 19) means that even a plan the Board never accepted becomes the operative plan.

Commercially sensitive information is a significant concept for the SCI. The regulations allow deletion from the Parliamentary version, but the Board must first request the deletion, and the Minister retains discretion to refuse. If granted, the redacted copy must explain the deletion and include an Auditor General opinion (reg 20(3)-(4)). The regulations do not define “commercially sensitive” - that is left to interpretation by the Auditor General in each case. The process imposes a bureaucratic hurdle that may discourage the Board from seeking deletions for information that is genuinely sensitive but difficult to prove to an auditor’s satisfaction.

Finally, the Treasurer’s concurrence is a concept that runs through both Parts. The Minister cannot agree to a draft or agree to or direct a modification without the Treasurer’s concurrence (regs 12, 22). This creates a two-minister veto over the Board’s planning, increasing the political risk that planning becomes a bargaining process between the Board, the portfolio minister, and Treasury.

The primary entity affected is Gold Corporation, the statutory corporation that operates The Perth Mint and related precious metals businesses. The regulations impose duties directly on its Board, not on management or employees. The Board must prepare and submit the draft plans, respond to ministerial requests, comply with directions, and ensure the SCI is tabled. The regulations also cover each of Gold Corporation’s subsidiaries - the SDP and SCI must set out objectives and targets for subsidiaries as well as for the parent (regs 6(1), 16(2)). This means the board of any subsidiary within the Gold Corporation group is indirectly bound by the targets set in the group plan, even though the subsidiary may have separate directors and statutory duties under the Corporations Act 2001 (Cth).

The Minister for Mines and Petroleum (the administering Minister) is the central decision-maker. The Minister may fix deadlines, return drafts, give directions, grant exemptions, and agree to or direct modifications. The Minister must consult the Board before directing a modification (regs 11(3), 21(3)), but the consultation requirement is not elaborate and does not require the Minister to accept any Board view. The Treasurer is also affected: the Treasurer’s concurrence is a precondition for the Minister’s actions on both SDP and SCI (regs 12, 22). This effectively gives the Treasurer a veto point, delaying or blocking agreements the portfolio minister might otherwise support.

The Auditor General is drawn into the process only for commercially sensitive redactions to the SCI. The Auditor General must give an opinion on whether the deleted information is in fact commercially sensitive (reg 20(4)). No fee, timeframe or procedure is specified in the regulations, so this creates an administrative burden on the Auditor General’s office.

Parliament receives the agreed SCI, but only after the Minister has approved it. Parliament does not approve the document; it is merely laid before each House (reg 20(2)). This means the SCI is a reporting tool, not a binding contract with the legislature. The public and the media are affected only indirectly via tabled documents, but the ability to redact commercially sensitive material (reg 20(3)) means some information may never be disclosed.

Employees and customers of Gold Corporation are not directly addressed in the regulations, but the targets set in the SDP and SCI (e.g., pricing of products, productivity levels, capital expenditure) will affect business decisions that ultimately impact them. The regulations thus have a diffuse but real effect on commercial outcomes without granting any direct participation rights to those affected.

The regulations impose several distinct duties on the Board. The most immediate is the duty to prepare and submit a draft SDP and a draft SCI each year, by the date fixed by the Minister or, if no date is fixed, two months before the start of the next financial year (regs 4, 14). The Board has a duty to consider the prescribed matters when preparing the SDP - competitive strategies, pricing, productivity, financial requirements, capital expenditure and personnel requirements (reg 6(2)). This is not merely advisory; it is a mandatory consideration. The Board must also ensure the SCI is consistent with the SDP (reg 16(1)). This means the annual plan cannot depart from the five-year framework without first amending the SDP, which requires ministerial agreement and Treasurer’s concurrence (reg 11). Consistency is a legal requirement, not just a policy aspiration.

If the Minister returns a draft with a request to consider or further consider a matter and revise it, the Board must comply as soon as is practicable (regs 8(2), 18(2)). There is no right to refuse or to provide a counter-view. Similarly, if the Minister issues a direction under reg 8(3) or 18(3) (because no agreement has been reached by one month before the financial year), the Board must comply as soon as is practicable (regs 8(4), 18(4)). The phrase “as soon as is practicable” is context-dependent but does not grant a right to negotiate or appeal.

The Board has a duty to endeavour to reach agreement with the Minister: on the draft SDP and SCI, and to do so at the same time (regs 7, 17). The use of “endeavour” rather than “ensure” is significant - it recognises that agreement may be impossible, but the Board must make genuine attempts. The Board also has a duty to comply with directions to modify an agreed SDP or SCI (regs 11(2), 21(2)). The Minister must consult the Board before giving such a direction, but the Board has no right to refuse; consultation means the Board can make representations, but the Minister decides.

The Board’s key rights are limited. It may propose modifications to an agreed plan with the agreement of the Minister (regs 11(1), 21(1)). This is permissive, not a right of unilateral amendment. The Board may request the deletion of commercially sensitive matters from the copy of the SCI laid before Parliament (reg 20(3)). The Minister may comply but is not obligated to; if the Minister does comply, the redacted copy must include an explanation and an Auditor General opinion (reg 20(4)). The Board arguably has a right to insist on the legal form of that process if a deletion is approved, but no right to force the Minister to agree to the deletion.

There are no duties on the Board to publish or make available the SDP or the agreed SCI to the public or to shareholders (Gold Corporation is a statutory corporation, not a publicly listed company). The only publication requirement is the tabling of the SCI before Parliament. The regulations do not give the Board any right to challenge a ministerial direction in court or to seek independent arbitration; any challenge would have to be based on general administrative law principles (e.g., jurisdictional error, procedural fairness) outside these regulations.

The Gold Corporation (Policy Instruments) Regulations 2009 do not themselves prescribe any pecuniary penalties, fines, or imprisonment for non-compliance. They are purely procedural regulations that impose duties on the Board, but the consequence of breach is not set out within this instrument. This is a notable gap; the drafter has chosen to rely on the principal Act (Gold Corporation Act 1987) and general law for enforcement.

Under the principal Act (not reproduced here but referred to in regs 3 and 13), there are likely provisions regarding the Board’s duty to comply with the Act and regulations, and the Minister may have powers to give directions generally, or to remove board members for non-compliance. However, because the source text only provides these regulations, any speculation about penalties under the Act would be unsupported. We must therefore state that no penalty provisions are contained in the regulations themselves.

What is clear is that the regulations create a hierarchy of compulsion that can escalate without monetary sanction. For example, if the Board fails to submit a draft by the due date, the Minister cannot impose a fine but can presumably proceed to issue a direction based on no draft (though the logic of regs 8(3) and 18(3) assumes a draft exists). In practice, the enforcement mechanism is likely to be political and administrative: the Minister might report non-compliance to the responsible Minister or to Parliament, or could exercise powers under the Act to replace board members or issue binding directions that override board decisions.

The regulations also contain no provision for extension of time, waiver of default, or relief from the obligation to act “as soon as is practicable”. The Board could theoretically be in ongoing breach if it fails to comply with a direction in a timely manner. However, the absence of a penalty clause means that any enforcement would have to be pursued through the Act’s general enforcement mechanisms, which are not specified here. Practitioners advising the Board should note that compliance is legally required even without a threat of fine; failure to comply could expose the Board to a direction from the Minister under the Act, or potentially to an injunction or declaration in the Supreme Court, but those remedies are not created by these regulations.

For the commercially sensitive deletion process, if the Board makes a request but the Minister refuses, there is no penalty for the Board. If the Minister agrees but fails to include the Auditor General opinion, the tabling may be procedurally defective, but the regulations do not say what consequences follow. Perhaps parliamentary scrutiny would be affected, but no legal sanction attaches.

In summary, the regulations are enforced primarily through the doctrine of ministerial control and potential action under the parent Act, not through specific penal provisions.

These regulations are made under section 9B of the Gold Corporation Act 1987 (WA). That Act establishes Gold Corporation, defines its functions, and sets out the Board’s duties. The regulations flesh out the requirement in section 9B(1) that the Board prepare and submit to the Minister a strategic development plan and a statement of corporate intent. The principal Act likely contains other provisions dealing with the Board’s general power to manage the corporation, the Minister’s power to give policy directions, financial reporting requirements, and the role of the Auditor General. The regulations do not override any of those provisions; they operate within the framework of the Act. For example, the requirement in reg 16(2)(f) that the SCI set out accounting policies that apply to the preparation of accounts must be read in light of any accounting standards or other statutory requirements.

The regulations interact with public sector financial management laws applicable to statutory corporations in Western Australia, such as the Financial Management Act 2006 (WA) (though not cited in the source). The SCI requirement to set out dividend policy (reg 16(2)(e)) and performance targets (reg 16(2)(a)) will likely inform the annual reporting and budget processes under those Acts. The Treasurer’s concurrence requirement (regs 12, 22) also aligns with the Treasurer’s general role in approving borrowing, guarantees and equity injections for state entities.

The Parliamentary process is affected by reg 20 and 23. The SCI is laid before Parliament, not approved by it. This interacts with standing orders and parliamentary privileges. The ability to delete commercially sensitive material is consistent with state secrecy provisions in other legislation, but the requirement for an Auditor General opinion adds a layer of independent verification not found in general FOI exemptions.

The regulations refer to subsidiaries of Gold Corporation. Under Australian corporate law (Corporations Act 2001 (Cth)), a subsidiary is a legal entity with its own directors and duties. The regulations do not exempt the Board from complying with its duties to subsidiaries under that Act. The requirement that the SDP and SCI cover each subsidiary (regs 6(1), 16(2)) may create tension if subsidiary directors believe group objectives conflict with their own fiduciary duties. The Board must manage that by ensuring group plans are consistent with subsidiary governance obligations.

The Auditor General interacts under reg 20(4) by providing an opinion on commercial sensitivity. The Auditor General’s powers are likely governed by the Auditor General Act 2006 (WA). The regulations impose no additional powers or protections, so the Auditor General’s role is limited to the procedural function of providing that opinion.

No interaction with competition law, trade practices, or foreign investment law is mentioned in the regulations, but group pricing and competitive strategies (reg 6(2)) could raise issues under the Competition and Consumer Act 2010 (Cth) if the SDP were to mandate anti-competitive conduct. The regulations do not authorise any contravention of Commonwealth law.

According to the compilation table at the end of the source text, the Gold Corporation (Policy Instruments) Regulations 2009 were published in the Western Australian Gazette on 1 April 2010 (pages 1293-1307). Part 1 (preliminary) commenced on that day; the remainder commenced on 2 April 2010. The compilation table lists only one entry - the original regulations. There are no subsequent amendments recorded in the source. This means that for over a decade, the regulations have remained unchanged in their original form. No amending regulations, no reprints, and no repeal have been noted.

It is possible that amendments have been made to the regulations since the compilation date indicated in the source (the table appears to be current as at the date of the compilation, but the user-provided source does not include a compilation date beyond the original gazettal). Practitioners should check the current Western Australian legislation database to confirm whether any later amendments exist. The regulations are still in force unless repealed.

The absence of amendment history suggests that the procedural model for the SDP and SCI has been stable. However, the underlying Act (Gold Corporation Act 1987) may have been amended in ways that affect these regulations (e.g., changes to section 9B). The compilation note in the source says this is a compilation of the regulations, but it only shows the original gazettal. It does not list any amending Acts or regulations. This could mean either that no amendments have occurred or that the compilation is limited. Given the date (2010), it is plausible that the regulations are still in their original form.

The source text for these regulations contains no reference to any litigation, court cases, or legal challenges involving the Gold Corporation (Policy Instruments) Regulations 2009. There are no citations of cases, no savings or transitional provisions referring to court orders, and no schedule of affected legislation that might indicate judicial consideration. This is not surprising. The regulations are procedural and govern the relationship between a government corporation and its ministers. Disputes over strategic plans or statements of corporate intent are unlikely to reach court because the regulations provide no private right of action and the Minister has effective unilateral control. If a dispute were to arise, it would more likely be resolved through political negotiation or ministerial direction rather than litigation.

Nevertheless, the regulations could theoretically be challenged on administrative law grounds: for example, a direction given without proper consultation (reg 11(3) or 21(3) - “consult with the Board and take its views into account”) might be challenged for failure to afford procedural fairness or for being ultra vires if the consultation was a sham. Or a decision by the Minister to refuse a request to delete commercially sensitive information could be judicially reviewed. But no such reported case is known, and none is referenced in the source. The regulations themselves do not create a right of appeal or a tribunal.

Given the limited scope of the regulations, the absence of litigation history is consistent with their nature. They are a bureaucratic instrument, not a source of liability. Any litigation would more likely arise under the Gold Corporation Act 1987 generally (e.g., over financial performance, dividend payments, or the Board’s compliance with ministerial directions) rather than under these specific regulations. A lawyer advising a client would need to note that the regulations are not tested in court, so any ambiguity about the meaning of “consult” or “as soon as is practicable” must be resolved by ordinary statutory interpretation, not case precedent.

Several provisions in these regulations contain traps for the unwary Board member or advisor. First, the default operative plan under regs 9 and 19: if no agreement is reached before the start of a financial year, the latest draft submitted (including any modifications directed by the Minister) becomes the SDP or SCI. This means the Board could be bound to a plan it never agreed to and that may contain targets it considers unrealistic or harmful. The Board cannot simply refuse to operate under a plan it opposes; the regulations deem the draft to be the plan. There is no provision for the Board to argue that the latest draft is superseded by a more recent, albeit unagreed, version. If the Board submits an updated draft after the Minister has directed modifications, the “latest draft” definition captures modifications made at the direction of the Minister, so the directed version prevails.

Second, the minister’s power to direct modifications after agreement (regs 11(2) and 21(2)) is broad and only conditioned on prior consultation. The Minister need not obtain the Board’s consent. The consultation requirement does not require the Minister to accept any Board views. This means an agreed plan can be unilaterally altered by the Minister at any time, creating uncertainty for Gold Corporation’s commercial planning. The Board could spend months negotiating an SDP only to have it varied immediately.

Third, the Treasurer’s concurrence as a veto point slows decision-making. The Minister cannot agree to a draft or direct a modification without the Treasurer’s consent (regs 12, 22). If the Treasurer disagrees, no agreement can be reached, which likely triggers the default plan provision. The Board has no avenue to circumvent deadlock between two ministers.

Fourth, the commercially sensitive deletion process under reg 20(3)-(4) is not as protective as it may seem. The Board must request deletion; the Minister may refuse. If the Minister agrees, the Board must ensure the Auditor General provides an opinion. If the Auditor General opines that the information is not commercially sensitive, the Minister might still decide not to delete it, or the Board may face reputational risk. The requirement for an explanation at the deletion site can itself disclose the nature of the redacted information, especially if the reasons are vague. The process adds cost and delay to the tabling deadline of 14 days.

Fifth, the consistency requirement in reg 16(1) between the SCI and the SDP can be a trap if the SDP is not updated in time. The SCI must be prepared for a single financial year, and if the underlying SDP has not been agreed or has been superseded, the SCI must still be consistent with it. If the Board negotiates a new SDP mid-year, it cannot simply depart from the existing SCI without an agreed modification, which again requires Minister and Treasurer approval.

Sixth, there is no provision for urgent circumstances or for the Board to depart from the plan in an emergency without prior ministerial approval. The regulations are silent on force majeure or material change in circumstances. If the gold price collapses or a subsidiary faces a liquidity crisis, the Board may need to act quickly, but the formal modification process (regs 11 or 21) could be too slow. The default to the latest unagreed draft may lock in outdated targets.

Finally, the use of “as soon as is practicable” in regs 8(2), 8(4), 18(2) and 18(4) creates ambiguity. In a commercial context, “practicable” could be argued to allow for a short delay, but the Minister might interpret it as immediate. If the Board disagrees about what is practicable, there is no mechanism to resolve the disagreement except political escalation or legal action.

Compliance with these regulations requires the Board of Gold Corporation to establish a robust annual planning cycle that accommodates ministerial and Treasury involvement. The Board should start preparation well before the default deadline of two months before the start of the next financial year (regs 4(3), 14(3)). In practice, the Minister may fix an earlier date under regs 4(2) and 14(2), so the Board must monitor any notices.

The first step is to draft the strategic development plan (SDP) covering a five-year forecast period (or lesser period if agreed) (reg 5(1)). The draft must address the mandatory considerations in reg 6(2): competitive strategies, pricing, productivity, financial requirements, capital expenditure and personnel requirements. The Board should document its consideration of each factor in board minutes to demonstrate compliance. The SDP must also set out objectives and targets for each subsidiary (reg 6(1)). If the Board is unsure about the scope of “subsidiaries”, it should take legal advice on the entities within the group.

The draft SDP is then submitted to the Minister. The Board should simultaneously prepare a draft statement of corporate intent (SCI) for the next financial year, ensuring consistency with the SDP (reg 16(1)). The SCI must include all matters listed in reg 16(2), unless the Minister has granted an exemption (reg 16(3)). The Board should seek any exemption early in writing.

The Board must then endeavour to reach agreement with the Minister on both drafts, and ideally at the same time (regs 7, 17). This means engaging in good faith negotiations, providing supporting data, and responding promptly to Ministerial requests for revision. If the Minister returns a draft with a request, the Board must comply “as soon as is practicable” (regs 8(2), 18(2)). To avoid a direction, the Board should aim to reach agreement by one month before the financial year start - because after that, the Minister can issue binding directions (regs 8(3), 18(3)). If the Board disagrees with the Minister’s position, it should present its case at the negotiation stage; there is no appeal from a direction.

If no agreement is reached by the start of the financial year, the latest draft (including any directed modifications) becomes the operative plan (regs 9, 19). The Board must still operate under that plan even if it disagrees, and it should continue to negotiate a new plan for future periods. The Board can propose modifications at any time with the Minister’s agreement (regs 11(1), 21(1)), but the Minister can also direct modifications after consultation (regs 11(2), 21(2)).

For the SCI, after agreement, the Minister must table it in Parliament within 14 days (reg 20(2)). The Board should anticipate this deadline and, if it wishes to delete commercially sensitive information, it must make a formal request to the Minister as early as possible, because the Auditor General must give an opinion (reg 20(4)). The Board should prepare a clear justification for why each deletion is commercially sensitive, to assist the Auditor General. The Board should also expect that some information might be made public despite its sensitivity.

The Board should maintain a written record of all submissions, ministerial requests, directions, consultations and agreements, as this may be necessary to demonstrate compliance if challenged. It should also ensure that any modifications made at the direction of the Minister are clearly documented and reflected in the latest draft.

Finally, because the regulations carry no penalties, the Board must nevertheless treat compliance seriously. Failure to comply could lead to ministerial action under the parent Act, reputational damage, or political intervention. Regular legal review of the planning process is advisable.