Lotteries Commission (Policy Instruments) Regulations 2010

Strategic development plan. This is a longer term instrument covering a forecast period of five years (or a lesser period if the Minister agrees - regulation 5(1)). It must set out “economic and financial objectives and operational targets” and explain how those objectives and targets will be achieved (regulation 6(1)). The matters the Commission must consider include competitive strategies (where appropriate), pricing principles, productivity levels, financial requirements, capital expenditure and personnel requirements (regulation 6(2)). This is not a purely aspirational document: it becomes binding once the Minister agrees (regulation 10) and can be modified only with the Minister’s agreement or at the Minister’s direction (regulation 11). The Minister cannot agree to any draft or modification without the Treasurer’s concurrence (regulation 12).

Statement of corporate intent. This is an annual instrument that must be consistent with the strategic development plan (regulation 16(1)). It must set out performance targets and other measures by which performance “may be judged”, an outline of objectives, the nature and scope of functions to be performed, the main undertakings for the year, accounting policies, and the type of information to be given to the Minister in the annual report (regulation 16(2)). The Minister can exempt the Commission from including any of those matters (regulation 16(3)). Like the strategic plan, it becomes operative only upon the Minister’s agreement (regulation 20(1)) and can be modified only with the Minister’s agreement or direction (regulation 21). The Treasurer’s concurrence is required for both agreement and modification (regulation 22). One additional feature: the statement must be laid before Parliament within 14 days of agreement, but commercially sensitive information can be deleted at the Commission’s request, with the deletion requiring a statement of reasons at the place in the document and an accompanying opinion from the Auditor General as to whether the deleted information is truly commercially sensitive (regulation 20(2)-(4)).

Latest draft as default. If the Minister and Commission cannot reach agreement before the start of a financial year, the “latest draft” becomes the operative plan or statement until agreement is reached (regulations 9, 19). The term “latest draft” is defined as the draft last submitted by the Commission before the start of the year, with any modifications the Commission has made at the Minister’s direction (whether before or after the start of the year). This means the Minister can effectively set the default by giving directions on the draft before the year begins, even if formal agreement is never reached.

Treasurer concurrence. This is a recurring requirement: the Minister cannot agree to a draft strategic development plan, agree to or direct any modification of such a plan, agree to a draft statement of corporate intent, or agree to or direct any modification of that statement, except with the Treasurer’s concurrence (regulations 12, 22). This ensures fiscal policy control rests with the Treasurer, not just the portfolio Minister.

Commercially sensitive information. The regulations permit deletion of such information from the statement laid before Parliament, but only if the Commission requests it and the Minister agrees. The deletion must be noted in the document with reasons, and the Auditor General must opine on whether the information is commercially sensitive. Importantly, the Minister retains discretion to comply with the request “despite” the obligation to lay the full statement (regulation 20(3)). There is no equivalent provision for the strategic development plan, which is not laid before Parliament.

The Lotteries Commission. As the entity subject to the planning obligations, the Commission (its members and staff) must invest time and resources each year in preparing two substantial planning documents. The regulations do not prescribe the level of detail, but the requirement to address competitive strategies, pricing principles, productivity levels, capital expenditure and personnel requirements (regulation 6(2)) suggests meaningful analytical work. The Commission must also engage in ongoing negotiation with the Minister, respond to requests for revisions, and comply with compulsory directions. This imposes an annual compliance burden that scales with the complexity of the Commission’s operations. The Commission’s commercial flexibility is curtailed: it cannot change its strategic direction or annual targets without ministerial approval and Treasurer concurrence (regulations 11, 21).

The Minister for Racing, Gaming and Liquor. The portfolio Minister holds significant powers under these regulations. The Minister can set the submission date, return drafts for reconsideration, request revisions, direct modifications, and ultimately decide whether to agree to each draft (regulations 4, 8, 10, 18, 20). The Minister can also exempt the Commission from required contents of the statement of corporate intent (regulation 16(3)) and can direct modifications to the strategic development plan at any time after consultation (regulation 11(2)). These powers create political control over the Commission’s planning, which can be used to align the Commission’s operations with government policy. The requirement for Treasurer concurrence, however, tempers the Minister’s unilateral power.

The Treasurer. The Treasurer must concur in every agreement to a draft and in every agreement to or direction for modification of either instrument (regulations 12, 22). This gives the Treasurer a veto over the Commission’s planning. The Treasurer’s involvement may reflect the Commission’s role as a revenue generating body for the State, and the Treasurer’s interest in the Commission’s financial performance, dividend payments and capital expenditure. The regulations do not specify criteria for the Treasurer’s decision, leaving it as a political judgment.

Parliament. The statement of corporate intent must be laid before both Houses of Parliament (regulation 20(2)), giving members an opportunity to scrutinise the Commission’s annual planning. The strategic development plan is not laid before Parliament, and commercially sensitive information can be redacted from the statement. Parliament’s oversight is therefore partial and delayed. The regulations do not require any formal parliamentary approval.

Commercial partners and contractors. Because the Commission’s planning documents set targets for functions and undertakings, any contracts or joint ventures it enters may be affected by changes to those plans. The ministerial direction power could lead to shifts in strategic priorities that affect existing commercial relationships. The commercially sensitive information protections may give some comfort to third parties, but the Treasury concurrence requirement adds an additional political layer to decisions that could affect contract values or timetables.

Taxpayers and the public. Ultimately, the Commission’s performance affects the return to the consolidated fund and the efficiency of lottery operations. The regulations do not require the Commission to maximise profits or minimise costs; they merely prescribe a process for setting objectives. The public has no direct input into the planning process, and the strategic development plan is not publicly tabled. The statement of corporate intent is tabled but may have redactions.

Duty to prepare and submit drafts. The members of the Commission must prepare and submit a draft strategic development plan and a draft statement of corporate intent each year (regulations 4(1), 14(1)). The drafts must be submitted by the day fixed by the Minister (with Treasurer concurrence) or, if no day is fixed, two months before the start of the next financial year. The duty is absolute; there is no provision for extension or exemption.

Duty to comply with ministerial requests. If the Minister returns a draft and requests the Commission to consider or further consider any matter and revise the draft accordingly, the Commission must comply “as soon as is practicable” (regulations 8(2), 18(2)). This is a broad request power that can be used repeatedly, creating an iterative process that could delay agreement.

Duty to comply with ministerial directions. If the Minister gives a written direction under regulation 8(3) or 18(3) (after failed negotiation by one month before the financial year) or under regulation 11(2) or 21(2) (to modify an agreed plan or statement), the Commission must comply “as soon as is practicable”. There is no right to appeal or to seek review. The only procedural requirement before a modification direction is that the Minister must consult with the Commission and take its views into account (regulations 11(3), 21(3)). Consultation does not require agreement.

Duty to negotiate in good faith. The Minister and the Commission must “endeavour” to reach agreement on each draft as soon as possible, and in any event not later than the start of the next financial year (regulations 7, 17). They must also try to reach agreement on both instruments at the same time. The word “endeavour” imposes a procedural obligation of best efforts but does not require a specific outcome.

Right to request deletion of commercially sensitive information. The Commission may request the Minister to delete commercially sensitive material from the statement of corporate intent before it is laid before Parliament (regulation 20(3)). The Minister has discretion to comply. If deletion occurs, the document must contain a statement of reasons at the point of deletion and be accompanied by an opinion from the Auditor General on whether the information is commercially sensitive (regulation 20(4)). The regulation does not require the Minister to follow the Auditor General’s opinion; the Minister could accept a deletion the Auditor General considers not commercially sensitive, or refuse a deletion the Auditor General considers justified. The auditor’s role is advisory only.

Right to propose modifications. The Commission may propose modifications to an agreed strategic development plan or statement of corporate intent, but the modification becomes effective only with the Minister’s agreement and the Treasurer’s concurrence (regulations 11(1), 21(1)). The Commission has no unilateral right to revise either instrument.

The regulations contain no monetary penalties, infringement notices, or criminal offences for non-compliance. They do specify that the Commission “must comply” with ministerial requests and directions, and that it must prepare and submit drafts by required dates. The enforcement mechanism that exists is indirect, operating through the underlying Lotteries Commission Act 1990. The Minister retains the power under the Act to appoint and remove members of the Commission. Persistent failure to comply with planning obligations could be grounds for removal, but the regulations themselves do not state this.

A more immediate enforcement tool is the fallback provision in regulations 9 and 19. If the Commission fails to reach agreement on a draft, the “latest draft” becomes the operative plan or statement. The Minister can influence that default by giving directions before the financial year begins, meaning the Commission cannot avoid compliance simply by delaying. The use of the “must comply” language, without any remedial process, means the Commission’s only option if it disagrees with a direction is to seek judicial review on administrative law grounds (e.g., unreasonableness, procedural error, lack of consultation). The regulations are silent on any internal dispute resolution mechanism.

The Treasurer’s concurrence requirement adds a de facto veto. Without Treasurer concurrence, no agreement or modification can occur. The Treasurer could withhold concurrence indefinitely, leaving the fallback draft in place indefinitely. This is not strictly a penalty but functions as one because it denies the Commission any agreed plan.

Parliamentary scrutiny is another indirect enforcement mechanism. The statement of corporate intent must be laid before both Houses within 14 days of agreement (regulation 20(2)). Failure to do so would breach the regulation, but the regulations do not specify consequences. Parliamentary committees could summon the Minister to explain non-compliance, but that is a political remedy.

The regulations also require the Auditor General to render an opinion on deleted commercially sensitive information (regulation 20(4)). If the Commission or the Minister acts inconsistently with that opinion, there is no stated consequence, but the Auditor General could issue a non-compliance report in the annual audit. Again, the enforcement is reputational and political rather than legal.

These regulations are made under section 8B of the Lotteries Commission Act 1990, which empowers the Governor to make regulations prescribing “policy instruments” for the Commission. The regulations therefore derive their authority from that Act and must be read in conjunction with it. Section 8B(1) of the Act specifically requires the Commission to prepare strategic development plans and statements of corporate intent in accordance with the regulations. The regulations fill in the procedural detail.

The regulations interact with the broader public sector governance framework in Western Australia. The requirement to set “economic and financial objectives and operational targets” (regulation 6(1)) and accounting policies (regulation 16(2)(e)) suggests alignment with the Financial Management Act 2006 (WA), which imposes financial management standards on agencies. The Treasurer concurrence requirement (regulations 12, 22) also connects to the Treasurer’s general responsibilities under that Act and under the Government Financial Responsibility Act 2000 (WA). The Commission, as a statutory authority, is also likely subject to the Public Sector Management Act 1994 (WA) in respect of personnel and corporate services.

The Auditor General’s role in opining on commercially sensitive information (regulation 20(4)) is an instance of interaction with the Auditor General Act 2006 (WA), which establishes the office and its powers. The regulations do not expand the Auditor General’s audit powers but create a specific statutory opinion task that the Auditor General must perform at the Commission’s request. There is no provision for the Auditor General to initiate such an opinion; it arises only when the Commission seeks a deletion.

The regulations may also interact with the State Records Act 2000 (WA) and the Freedom of Information Act 1992 (WA). The planning documents are records of the Commission and may be subject to access requests, subject to exemptions. The commercially sensitive information protections in the regulations do not override FOI; they only affect what is tabled in Parliament.

There is no express interaction with competition or consumer law, but the reference to “competitive strategies (where appropriate)” in regulation 6(2) acknowledges that the Commission operates in markets where competition law may apply. The regulations do not create an exemption from the Competition and Consumer Act 2010 (Cth) or its State equivalents.

The requirement for the statement of corporate intent to be laid before Parliament (regulation 20(2)) interacts with parliamentary privilege. Documents tabled in Parliament are protected by absolute privilege and cannot be the subject of defamation proceedings. The deletion of commercially sensitive information is presumably intended to avoid tabling material that might harm the Commission’s commercial position, but once tabled, the statement becomes a public document.

The Lotteries Commission (Policy Instruments) Regulations 2010 were published in the Western Australian Government Gazette on 15 March 2011 at pages 889 to 903. Part 1 (citation and commencement) commenced on the date of gazettal. The remainder of the regulations, comprising Parts 2 and 3, commenced the following day, 16 March 2011. There is no amendment history recorded in the compilation table provided. The regulations have not been amended since their commencement. The compilation table shows only the original citation, gazettal date and commencement dates. No amending regulations are listed. This suggests the regulations have remained static for over a decade, despite changes in the Commission’s operating environment, such as the growth of online lottery sales and the integration of the Commission with other gambling regulators in Western Australia (the Commission has since been subsumed into the Gaming and Wagering Commission of Western Australia under the Gaming and Wagering Commission Act 1987, which took effect from 1 July 2023). The regulations were originally made under the Lotteries Commission Act 1990, which has been repealed and replaced. It is unclear whether these regulations have been saved or re-made. The absence of amendments could mean the regulations have become obsolete or are no longer enforced. Practitioners should verify the current status: the regulations may have been revoked or replaced by new regulations under the Gaming and Wagering Commission Act. The compilation table in the source material does not indicate any amending instruments.

The source material contains no references to any court cases involving these regulations. The regulations are largely procedural and have not attracted judicial interpretation. The Minister’s direction powers could theoretically be challenged under administrative law on grounds such as failure to consult, taking irrelevant considerations into account, or unreasonableness in the Wednesbury sense. However, no such challenges have been recorded. The commercially sensitive information deletion process could give rise to disputes about the Auditor General’s opinion, but again, no litigation is noted. The absence of litigation is consistent with the regulations’ nature: they govern an internal planning process that is unlikely to generate justiciable controversies. Disagreements between the Commission and the Minister are more likely resolved through negotiation or through the fallback provisions than through court proceedings. The regulations were also in force for a relatively short period before the Commission was restructured, which further limits the opportunity for litigation. Any practitioner asked to advise on the validity of a ministerial direction under these regulations should check whether the regulations are still in force, and if so, consider the standard grounds of judicial review.

The “latest draft” trap. If the Commission and Minister fail to reach agreement on a draft by the start of the financial year, the “latest draft” becomes the operative plan or statement (regulations 9, 19). That term is defined to include any modifications the Commission made at the Minister’s direction, even if those directions were given after the start of the year. This means the Minister can effectively impose terms after the year has begun by issuing a direction that modifies the last draft. The Commission cannot avoid an unpalatable set of targets simply by not agreeing; the Minister can direct modifications to the fallback draft at any time.

No right of appeal against a direction. The Minister can direct modifications to an agreed plan or statement after consultation (regulations 11(2), 21(2)). The consultation requirement is procedural and does not require the Minister to accept the Commission’s views. There is no internal review mechanism, and the regulations do not specify any criteria the Minister must apply. A direction could be arbitrary and still legally effective, subject only to general administrative law.

Treasurer concurrence as a hidden veto. Both the Minister and the Commission might agree on a draft, but the Treasurer’s concurrence is still required (regulations 12, 22). The Treasurer can withhold concurrence for any reason or no reason. This introduces a second political actor into the planning process, increasing uncertainty and delay. The Commission cannot rely on the Minister’s agreement alone.

Commercially sensitive deletion is at the Minister’s discretion. The Commission may request deletion of commercially sensitive information from the statement laid before Parliament, but the Minister “may” comply with the request despite the obligation to lay the full statement (regulation 20(3)). The Auditor General’s opinion is advisory; the Minister can reject it. This creates a risk that genuinely sensitive commercial data could be tabled against the Commission’s wishes, or that the Minister could agree to delete information that should be public.

No public consultation required. The regulations do not require the Minister to publish drafts, invite submissions, or consult any stakeholders other than the Commission. This limits transparency and accountability. The strategic development plan is never tabled in Parliament. The statement of corporate intent is tabled only after agreement, and even then with possible redactions.

Vague performance criteria. The statement of corporate intent must set out “performance targets and other measures by which performances may be judged” (regulation 16(2)(a)). This uses the word “may” rather than “must”, suggesting targets are not necessarily binding for accountability purposes. The Commission could be given vague targets that are difficult to measure, reducing the value of the document as a governance tool.

No provision for significant changes. The regulations require the plan and statement to be agreed in advance, but they contain no mechanism for dealing with unexpected events that fundamentally alter the Commission’s circumstances during the year. A modification requires the Minister’s agreement and Treasurer concurrence, which may take time. If events move quickly, the Commission may be stuck with an out-of-date plan.

Interaction with repeal of the Lotteries Commission Act. The regulations were made under the Lotteries Commission Act 1990, which has been repealed and replaced by the Gaming and Wagering Commission Act 1987. Unless the regulations were saved by transitional provisions, they may be spent. Any reliance on these regulations should be preceded by a check of current WA legislation.

Step 1: Determine submission dates. The Minister may, with Treasurer concurrence, fix a day in each year by which drafts must be submitted (regulations 4(2), 14(2)). The Commission should check whether such a notice is in effect. If none, the submission date defaults to two months before the start of the next financial year - effectively around 1 April for a 1 July start.

Step 2: Prepare the draft strategic development plan. Cover a five year forecast period (or a lesser period agreed with the Minister). Include economic and financial objectives, operational targets, and how they will be achieved. Consider competitive strategies, pricing principles, productivity levels, financial requirements, capital expenditure and personnel requirements. The plan must be submitted to the Minister in draft form.

Step 3: Prepare the draft statement of corporate intent. Ensure it is consistent with the strategic development plan. Include performance targets and measures, an outline of objectives, the nature and scope of functions, main undertakings, accounting policies, and the type of information to be given in annual reports. The Minister may exempt the Commission from any of these contents; apply for an exemption if needed.

Step 4: Submit both drafts. Submit them by the required date. The regulations do not prescribe a format. Retain evidence of submission (e.g., date stamped copy, email chain).

Step 5: Negotiate with the Minister. The Commission must endeavour to reach agreement on both drafts as soon as possible, and in any event by the start of the next financial year. Be prepared for the Minister to return the drafts and request revisions. Respond promptly (“as soon as is practicable”). If the Minister requests reconsideration of a matter, comply.

Step 6: Respond to directions. If the Minister issues a written direction under regulation 8(3) or 18(3) (when no agreement is reached one month before the start of the year, or at any time for modifications after agreement), comply as soon as practicable. The direction may specify steps to be taken or modifications to be made. There is no right of appeal. Before giving a direction on modifications, the Minister must consult the Commission and take its views into account. Ensure those views are recorded in writing.

Step 7: Obtain Treasurer concurrence. The Minister cannot agree to any draft or to any modification (whether agreed or directed) without the Treasurer’s concurrence. The Commission should ensure the Minister has sought that concurrence before proceeding. The concurrence is not required from the Commission, but the Commission should not treat the Minister’s agreement alone as final.

Step 8: Finalise and table the statement. Once the Minister (with Treasurer concurrence) agrees to the draft statement, it becomes the statement of corporate intent. The Minister must cause a copy to be laid before both Houses of Parliament within 14 days. If the Commission wants to delete commercially sensitive information, request this in writing before the 14 day period runs. The Minister may comply. If deletion occurs, ensure the document includes a statement of reasons at the point of deletion and is accompanied by an Auditor General opinion. The Commission should engage with the Auditor General in advance to expedite that opinion.

Step 9: Manage modifications during the year. If circumstances change, the Commission may propose modifications to either the strategic development plan or the statement. Submit the proposed modifications to the Minister, seek agreement, and ensure Treasurer concurrence is obtained. If the Minister directs modifications unilaterally, comply after consultation.

Step 10: Document the process. Keep records of all submissions, correspondence, directions, concurrences and consultations. This will be important for audit and for demonstrating compliance if questions arise in Parliament or in the annual report.