Government Employees Superannuation Board (Policy Instruments) Regulations 2009

These Regulations prescribe the process by which the Government Employees Superannuation Board must prepare, submit, obtain approval for, and modify two key policy instruments: the strategic development plan and the statement of corporate intent. The strategic development plan covers a forecast period of five years (or a lesser period agreed with the Treasurer) and must set out the Board's economic and financial objectives, operational targets, and how those will be achieved (regulation 6). It must also consider competitive strategies, pricing, productivity, financial requirements, capital expenditure, and personnel needs. The statement of corporate intent covers a single financial year and must be consistent with the strategic development plan (regulation 16). It must include performance targets, an outline of objectives and functions, accounting policies, and the type of information to be given to the Treasurer.

Mechanically, the Regulations create an annual cycle. The Board submits a draft of each instrument each year. The Treasurer may fix a day for submission; otherwise it must be submitted two months before the next financial year (regulations 4 and 14). The Board and the Treasurer must endeavour to reach agreement before the financial year starts (regulations 7 and 17). If they cannot agree, the Treasurer gains escalating powers. One month before the financial year, the Treasurer may direct the Board to take specified steps or make specified modifications (regulations 8(3) and 18(3)). If there is still no agreement by the start of the financial year, the latest draft plan or statement, as modified by any Treasurer directions, becomes the operative instrument for the year (regulations 9 and 19). After agreement, the statement of corporate intent must be laid before Parliament within 14 days, though commercially sensitive information may be deleted with the Auditor General's opinion (regulation 20). The strategic development plan, notably, does not require tabling. Modifications during the year require the Treasurer's agreement or may be compelled by direction after consultation (regulations 11 and 21).

The Regulations operate under section 33B of the State Superannuation Act 2000 and replace earlier, more prescriptive requirements. The 2014 amendments deleted regulations 12 and 22 (which had set additional content requirements that were presumably subsumed or obsolete) and changed references from "Minister" to "Treasurer" across the instruments. No penalties are specified in the Regulations themselves; enforcement rests on the Treasurer's power to direct and the Board's statutory obligation to comply.

The strategic development plan is the Board's medium-term planning document covering a five-year horizon. It is a forward-looking instrument that must articulate economic and financial objectives and operational targets for the Board and its subsidiaries. Regulation 6(2) enumerates matters the Board must consider when preparing it: competitive strategies where appropriate, pricing of products, productivity levels, financial requirements, capital expenditure, and personnel requirements. This list is broad but non-exhaustive. The plan is not static; it can be modified during its life with the Treasurer's agreement (regulation 11(1)) or at the Treasurer's direction after consultation (regulations 11(2)-(3)). The plan is not tabled in Parliament, so its public visibility is limited compared with the statement of corporate intent.

The statement of corporate intent is the annual operational document. It must be consistent with the strategic development plan (regulation 16(1)). It sets out performance targets and other measures by which performance may be judged (regulation 16(2)(a)); an outline of objectives (16(2)(b)); the nature and scope of functions proposed (16(2)(c)); main undertakings (16(2)(d)); accounting policies (16(2)(e)); the type of information to be given to the Treasurer in annual reports or otherwise (16(2)(f)); and any other agreed matters (16(2)(g)). The Treasurer may exempt the Board from including any of these matters (regulation 16(3)). The statement, once agreed, must be laid before Parliament within 14 days, subject to deletion of commercially sensitive material on request of the Board and with an Auditor General opinion (regulation 20). This creates a tension between transparency and commercial confidentiality that is managed through a defined procedure.

The agreement process is structured around a negotiation-like framework. The Board submits a draft; the Treasurer may return it for reconsideration (regulations 8(1) and 18(1)). The parties must endeavour to reach agreement as soon as possible and in any event before the start of the next financial year. The Regulations expressly link the two instruments by requiring the Board and Treasurer to "endeavour to reach such agreement at the same time as they reach agreement on the draft statement of corporate intent" (regulation 7(b)). If agreement proves elusive, the Treasurer gains a unilateral power to direct modifications one month before the year starts. The fallback provision (regulations 9 and 19) ensures continuity: the latest draft, with any Treasurer-directed modifications, becomes the operative instrument until agreement is reached. This means the Board cannot force a stalemate; the Treasurer's view ultimately prevails if agreement cannot be achieved in time.

The Regulations directly affect the Government Employees Superannuation Board, its subsidiaries, and the Western Australian Treasurer. The Board is the primary subject of the obligations: it must prepare, submit, negotiate, and comply with directions. Its subsidiaries are encompassed under the definitions of the plan and statement: the instruments must cover each subsidiary's objectives, targets, and functions (regulations 6 and 16). The Board's staff and executive will be responsible for drafting, modelling, and revising these documents annually. This imposes a recurring compliance burden of producing detailed forecasts and performance targets consistent with the strategic plan, and then revising them if the Treasurer requests or directs changes.

The Treasurer exercises significant control. The Regulations grant the Treasurer the power to fix submission dates, return drafts for further consideration, give binding directions one month before the start of the financial year, and direct modifications during the year (after consultation). The Treasurer also decides whether to agree to a draft, can exempt the Board from including certain content in the statement of corporate intent (regulation 16(3)), and decides whether to delete commercially sensitive material before tabling. This centralises substantial planning authority in a single ministerial office, reducing the Board's autonomous strategic decision-making.

Parliament receives the agreed statement of corporate intent (but not the strategic development plan) and the Auditor General may become involved in assessing whether deleted information is commercially sensitive (regulation 20(4)(b)). This gives Parliament a transparency mechanism over the Board's annual undertakings, albeit with a potential blind spot for sensitive material.

Indirectly, the Regulations affect the members and beneficiaries of the superannuation schemes administered by the Board. The strategic development plan and statement of corporate intent guide the Board's investment and operational strategies. However, the Regulations do not create any direct rights for members or beneficiaries to access these documents or to enforce compliance. The only direct public accountability mechanism is through Parliament, which occurs after the plan and statement are already in effect. The Regulations do not require consultation with members or employers before the documents are finalised.

External contractors, service providers, and counterparties of the Board may also be affected indirectly if the Board's strategic directions change pricing, outsourcing, or investment strategies. Competitors in the financial services sector may observe the publicly available statement of corporate intent (after deletions) and adjust their strategies accordingly. The requirement to consider competitive strategies (regulation 6(2)) suggests the Board is expected to position itself in competitive markets for superannuation products, meaning private sector superannuation providers could be affected by the Board's pricing and product decisions.

The Board's primary duty is to prepare and submit a draft strategic development plan and a draft statement of corporate intent each year by the required date (regulations 4 and 14). The Board must include the matters specified in regulations 6 and 16. It must also endeavour to reach agreement with the Treasurer on both drafts as soon as possible and in any event before the start of the next financial year (regulations 7 and 17). The Board must concur in attempting to achieve agreement on both instruments at the same time (regulation 7(b)).

If the Treasurer returns a draft and requests reconsideration or revision, the Board must comply "as soon as is practicable" (regulations 8(2) and 18(2)). The same phrase appears in relation to compliance with a Treasurer's direction (regulations 8(4) and 18(4)). This is a soft deadline; it does not specify a number of days, which creates some uncertainty. The Board also has a duty to comply with any direction from the Treasurer to modify the strategic development plan or statement of corporate intent (regulations 11(2) and 21(2)). Before giving such a direction, the Treasurer must consult with the Board and take its views into account (regulations 11(3) and 21(3)). That consultation obligation is a procedural right for the Board, but it does not require the Treasurer to adopt the Board's views, only to consider them.

The Board has the right to initiate modifications to an agreed plan or statement, but only with the Treasurer's agreement (regulations 11(1) and 21(1)). The Board may also request the Treasurer to delete commercially sensitive matters from the copy of the statement of corporate intent before it is laid before Parliament (regulation 20(3)). The Treasurer may comply with that request, but is not compelled to do so. If the request is granted, the deleted portion must be replaced with a statement of reasons, and the Auditor General must provide an opinion on whether the deletion is genuinely commercially sensitive (regulation 20(4)). This gives the Board a limited protection against public disclosure of competitively valuable information.

The Treasurer has the right to fix submission dates, return drafts for reconsideration, and give binding directions one month before the year starts (regulations 8 and 18). The Treasurer also has the right to agree to a draft (regulation 10 and 20) and thereby bring it into force. The Treasurer can exempt the Board from including any matter in the statement of corporate intent (regulation 16(3)). These are powers, not duties, so the Treasurer may choose not to exercise some of them. The Treasurer's only explicit duty is to cause the agreed statement of corporate intent to be laid before Parliament within 14 days (regulation 20(2)), though this duty can be circumvented by transmitting a copy to the Clerk of a House if it is not sitting (regulation 23).

The Regulations themselves do not create any specific offences, fines, or civil penalties for non-compliance. There is no provision for monetary penalties, imprisonment, or adverse publicity orders. Instead, enforcement relies on the Treasurer's hierarchical powers. If the Board fails to submit a draft on time, the Treasurer could theoretically issue a direction under the existing framework once the one-month-before deadline passes. If the Board fails to comply with a direction, the Treasurer may have remedies under the State Superannuation Act 2000 or general administrative law, but these Regulations do not elaborate.

The most immediate consequence of non-compliance is that the latest draft, as modified by any Treasurer direction, becomes the operative plan or statement (regulations 9 and 19). This means the Board loses the opportunity to have its own preferred document in force. That is a strong incentive to engage in the process, because the alternative is a document imposed in whole or in part by the Treasurer. The Board also loses the ability to request deletion of commercially sensitive information if no agreed statement is reached (the fallback mechanism does not include the deletion procedure).

For the Board, failure to comply with a direction could potentially be challenged in court as a breach of statutory duty, but the Regulations do not specify a right for any person to bring proceedings. The Treasurer could also potentially take steps to replace Board members or exercise other powers under the principal Act. The Regulations do not mention any role for the Auditor General in enforcement, only in verifying commercially sensitive deletions for tabling purposes.

The lack of explicit penalties does not mean the Regulations are merely advisory. The combination of the Board's statutory duty under the Act (section 33B) and the mandatory language ("the Board must comply") in these Regulations creates a legal obligation. A court could grant an injunction or declaration if the Board refused to comply. However, the practical enforcement mechanism is political and administrative: the Treasurer controls the timing and content of the documents, and the Board's funding or appointments may be influenced by its level of cooperation.

There are no civil liability protections for the Board or its officers in these Regulations for acts done in compliance with directions. If the Board follows a direction that later proves to be imprudent or costly, the direction itself might not shield the Board from other legal duties, such as those under the Superannuation Industry (Supervision) Act 1993 (Cth) or general fiduciary duties. This gap is an important risk factor for Board members.

These Regulations are made under section 33B of the State Superannuation Act 2000 (WA). They sit within a broader legislative framework governing the Government Employees Superannuation Board. The principal Act establishes the Board, its functions, and its general powers. The Regulations add specificity to the requirement for a strategic development plan and statement of corporate intent. They do not displace any other statutory duties: the Board must still comply with the Superannuation and Family Benefits Act, the Government Employees Superannuation Act 1987, and any Commonwealth superannuation regulation that applies to the Board as a trustee of a regulated superannuation fund.

The Regulations interact with the Auditor General Act 2006 (WA) through regulation 20(4), which requires the Auditor General to provide an opinion on whether deleted information is commercially sensitive. This creates a statutory function for the Auditor General in the tabling process. It does not give the Auditor General power to reject the deletion, only to express an opinion. That opinion must accompany the statement when laid before Parliament.

The requirement to lay the statement of corporate intent before Parliament (regulation 20(2)) interacts with the standing orders of the Legislative Council and Legislative Assembly. Regulation 23 provides a practical mechanism for laying when Parliament is not sitting, by transmitting a copy to the Clerk. This is consistent with standard parliamentary practice for documents required to be tabled.

The Regulations do not override the Board's duties under the State Records Act 2000 (WA) regarding retention of drafts and correspondence, nor under the Freedom of Information Act 1992 (WA) regarding access to documents. However, the commercially sensitive deletion process in regulation 20 may affect the availability of information under FOI, as the deletion is part of a specific parliamentary process rather than a general exemption.

There is an important interaction with the Board's investment powers and duties under the principal Act. The strategic development plan must consider competitive strategies and pricing (regulation 6(2)). This suggests the Board is expected to operate commercially. However, the Treasurer's power to direct modifications could conflict with the Board's duty to act in the best interests of beneficiaries if the direction forces imprudent strategies. The Regulations do not resolve that tension; they simply give the Treasurer ultimate control over the document, without exonerating the Board from its fiduciary duties. This potential inconsistency is a notable feature that practitioners should consider.

The Regulations were originally made in 2009 and published in the Gazette on 1 April 2010, with Part 1 commencing on that day and the remainder on 2 April 2010. The only amendment to date was made by the Government Employees Superannuation Board (Policy Instruments) Amendment Regulations 2014, published in the Gazette on 10 October 2014 with the same split commencement structure: regulations 1 and 2 on 10 October 2014, and the rest on 11 October 2014.

The 2014 amendment made several changes. It deleted regulations 12 and 22 entirely. These regulations originally related to additional matters that the statement of corporate intent had to include (regulation 12) and additional procedural requirements (regulation 22). Their deletion suggests these matters were either subsumed into the broader language of the remaining provisions or no longer considered necessary by the drafter. The amendment also changed various references throughout the regulations from "Minister" to "Treasurer". This reflects a portfolio change that occurred between 2009 and 2014, where the responsible minister became styled as the Treasurer. The amendment applied this change uniformly across Parts 2 and 3.

The amendment also made minor textual updates to several regulations, including regulations 3, 4, 5, 7, 8, 9, 10, 11 (strategic development plan part) and 13, 14, 16, 17, 18, 19, 20, 21, 23 (statement of corporate intent part). These changes are described in the Gazette as "amended" without specific detail; they likely reflect the change from "Minister" to "Treasurer" and the renumbering that followed the deletion of regulations 12 and 22.

There have been no further amendments. The Regulations remain in their 2014 form. The compilation table in the regulations indicates only these two instruments. The absence of later amendments does not necessarily mean the Regulations are dormant; it may reflect that the framework has been stable and that no policy changes have required adjustment. However, it also means that the Regulations have not been updated to reflect any subsequent changes in the principal Act or in administrative practice. Practitioners should check the current version of the State Superannuation Act 2000 to ensure section 33B remains in its original form.

No reported cases have been identified that interpret or apply the Government Employees Superannuation Board (Policy Instruments) Regulations 2009. This is unsurprising given the narrow scope of the Regulations: they are procedural instruments governing internal planning processes between the Board and the Treasurer. Disputes are likely to be resolved through administrative negotiation rather than litigation. The Regulations do not confer any private right of action on third parties, so there is little incentive for beneficiaries or external parties to bring proceedings.

Potential areas of litigation could include a challenge to the validity of a Treasurer's direction if the Board argued it was beyond power or procedurally deficient. For example, if the Treasurer gave a direction under regulation 11(2) without first consulting the Board as required by regulation 11(3), the Board might seek judicial review. Similarly, if the Treasurer fixed an unreasonably early submission date that made compliance impracticable, the Board might challenge it. However, no such cases have been reported.

Another possible litigation avenue is under the Auditor General's role in regulation 20(4). If the Board and Treasurer agreed to delete information as commercially sensitive but the Auditor General opined that it was not, the question of whether Parliament must still receive the document without that information could arise. But again, no case law exists.

The absence of litigation does not mean the Regulations are legally inconsequential. It suggests the parties have complied with the framework without resorting to courts. The Board is a government entity with a mandate to cooperate with the Treasurer, and litigation would be an extraordinary step. Nevertheless, the lack of judicial guidance means that many interpretive questions remain unresolved, such as the meaning of "as soon as is practicable" (regulations 8(2), 8(4), 18(2), 18(4)) or the threshold for "commercially sensitive" (regulation 20(3)). Legal practitioners advising the Board should treat these terms as open to argument until a court or tribunal provides clarity.

The most significant trap for the Board is that the strategic development plan and statement of corporate intent are not fully under its control at any stage. Even before the documents are finalised, the Treasurer can return drafts for reconsideration and, from one month before the financial year, issue binding directions. The Board cannot simply submit a draft and wait for agreement; it must actively negotiate and be prepared to accept Treasurer direction if agreement is not reached. The fallback provisions (regulations 9 and 19) mean the Board's own draft, as amended by Treasurer direction, becomes the operative document even without the Board's consent. This creates a risk that the Board could be bound by targets or strategies it considers imprudent, or that conflict with its fiduciary duties.

Another trap is the timing obligation. If the Treasurer does not fix a day, the default submission deadline is two months before the start of the next financial year (regulations 4(3)(b) and 14(3)(b)). That leaves very little time for negotiation if the Treasurer requests revisions. The one-month-before deadline for the Treasurer's direction power is tight. If the Board submits its draft close to the two-month deadline and the Treasurer returns it for reconsideration, there may be insufficient time to renegotiate before the one-month trigger. The Board should submit drafts well in advance of the default deadline to preserve negotiating space.

The requirement that the statement of corporate intent be consistent with the strategic development plan (regulation 16(1)) could be a trap if the strategic development plan is not yet agreed by the time the statement is due. The regulations do not specify which document takes precedence in a timing conflict. If the strategic development plan for the period has not been agreed, the annual statement must still be prepared. The Board may need to work from the latest draft strategic development plan (regulation 9) or from an earlier version. This creates ambiguity about which version is the baseline for consistency.

The commercially sensitive deletion process (regulation 20(3)-(4)) is a right but not a guarantee. The Treasurer may decline the Board's request. If the request is granted, the Auditor General's opinion is required and must accompany the tabled copy. That opinion itself may contain summary statements that reveal the nature of the deleted information. Further, the deletion must be accompanied by a statement of reasons for the deletion at the place in the document where the information would appear. This could effectively flag for readers that something important has been removed, potentially drawing attention to matters the Board wished to keep confidential.

Compliance begins with the annual calendar. The Board must identify the date fixed by the Treasurer for submission of the draft strategic development plan and draft statement of corporate intent. If no date is fixed, the default deadline is two months before the start of the next financial year (regulations 4(3) and 14(3)). The Board should set its internal drafting schedule well before this deadline to allow for Board approval and any Treasurer request for revision.

For the strategic development plan, the Board must cover a forecast period of five years (or a lesser period agreed with the Treasurer). It must include economic and financial objectives and operational targets for the Board and each subsidiary, and how those will be achieved (regulation 6(1)). The Board must also consider competitive strategies, pricing, productivity, financial requirements, capital expenditure, and personnel requirements (regulation 6(2)). These considerations should be documented in the plan or in supporting materials, even if not all are detailed in the plan itself. The plan should be realistic and grounded in financial modelling, as it forms the basis for the annual statement of corporate intent.

For the statement of corporate intent, the Board must ensure it is consistent with the strategic development plan (regulation 16(1)). It must include performance targets and other measures by which performance may be judged, an outline of objectives, the nature and scope of proposed functions, main undertakings, accounting policies, and the type of information to be given to the Treasurer in annual reports or otherwise (regulation 16(2)). The Board may seek an exemption from the Treasurer for any of these matters (regulation 16(3)). If commercially sensitive information is included, the Board should consider requesting its deletion before tabling, providing supporting rationale for the Treasurer and for the Auditor General's opinion.

The Board should engage early with the Treasurer's office to understand any particular concerns or expectations. The Board and Treasurer must endeavour to reach agreement as soon as possible and in any event before the start of the financial year (regulations 7 and 17). The Board should aim to have both instruments agreed simultaneously. If the Treasurer returns a draft for revision, the Board must comply "as soon as is practicable" (regulations 8(2) and 18(2)). The Board should treat this as an immediate priority to avoid triggering the one-month-before direction powers.

If the one-month-before deadline approaches with no agreement, the Board should be prepared for the Treasurer to issue directions. The Board must comply with those directions (regulations 8(4) and 18(4)). It is prudent for the Board to have legal advice on whether a direction appears to be within power, but the regulation provides no mechanism to pause compliance pending review. The Board should comply while reserving its rights if it believes the direction is invalid.