Western Australian Land Authority Regulations 1999

Strategic development plan (SDP). A rolling five-year (or lesser period agreed) forward-looking document that sets the Authority's economic and financial objectives, operational targets, and means of achievement (reg 4(1)-(2)). The board must prepare a draft annually and submit it to the Minister at least three months before the financial year (reg 3(2)). The content requirements direct the board to consider market environment, pricing, service efficiency, land asset management, government policy, and community service obligations (reg 4(3)). The SDP is not self-executing; it must be agreed between board and Minister, and the Treasurer must concur before any agreement (reg 10). The SDP can be modified only with the Minister's agreement or at the Minister's direction, again subject to the Treasurer's concurrence (regs 9, 10). If no agreement is reached, the Minister can direct changes unilaterally (reg 6(3)), and a default SDP operates in the interim (reg 7). The SDP thus functions as a binding executive-controlled document rather than a board-owned plan.

Statement of corporate intent (SCI). An annual document that operationalises the SDP for the financial year (reg 12(1)-(2)). It must be consistent with the SDP and specify twelve categories of information, including objectives, revenue and expenditure estimates, dividend policy, capital expenditure, proposed pricing, performance targets, accounting policies, reporting obligations, and community service obligation arrangements (reg 12(3)). The Minister may exempt the board from including any matter (reg 12(4)). The approval process mirrors the SDP: draft submitted three months before year start (reg 11(2)), Minister can request revisions (reg 14(1)-(2)), unilateral directions if no agreement one month before start (reg 14(3)-(4)), and a default SCI operates pending agreement (reg 15). The Minister must table the agreed SCI in Parliament within 14 days (reg 16(2)), but may delete commercially sensitive information on the board's request (reg 16(3)). The Treasurer's concurrence is required for agreement or modification (reg 18).

Community service obligation (CSO). Defined by reference to section 25A(3) of the Act (reg 2). CSOs are non-commercial services the Authority is required to perform at prices or conditions that would not be chosen on commercial grounds. The SCI must specify the nature, extent, costings, funding, and compensation arrangements for CSOs (reg 12(3)(j)-(l)). The SDP must also consider CSOs as part of the planning process (reg 4(3)(a)). This concept is central because it distinguishes between the Authority's commercial activities and mandated non-commercial activities, with the government expected to compensate for the latter.

Ministerial direction power. The Minister holds four key powers: (1) to return a draft plan and request revisions (reg 6(1), 14(1)); (2) to direct specific steps or modifications if no agreement one month before the financial year (reg 6(3), 14(3)); (3) to direct modifications to an agreed SDP or SCI after consultation (reg 9(2), 17(2)); and (4) to exempt matters from the SCI (reg 12(4)). The board must comply with any direction "as soon as is practicable" (reg 6(2),(4); 14(2),(4); 9(2); 17(2)). There is no appeal mechanism or independent arbitration in the regulations.

Treasurer's concurrence. The single most powerful constraint in the regulations. The Minister cannot agree to a draft SDP or SCI, nor agree to or direct any modification, without the Treasurer's concurrence (regs 10, 18). This gives the Treasurer an effective veto over all planning documents. The regulations do not specify factors the Treasurer must consider, nor do they impose a time limit on the Treasurer's decision.

Default pending document. If no agreement on a draft SDP or SCI is reached before the relevant financial year starts, the "latest draft plan" or "latest draft statement" becomes the operative document until agreement is reached (regs 7, 15). This default includes any modifications the Minister directed before the start of the year. This ensures the Authority always has a planning document, even if the board and Minister are in dispute, but that document is the Minister-shaped version.

The Western Australian Land Authority board and management. The regulations impose direct duties on the board: prepare drafts, submit them on time, try to reach agreement, comply with Ministerial requests and directions, and modify documents as directed. Failure to comply exposes the board to potential removal under the Act (though not in these regulations). The board loses operational autonomy over planning; its strategic and corporate intent documents are subject to Ministerial and Treasury control. For management, the SDP and SCI become binding once agreed or imposed, so operational decisions must align with these documents.

The Minister for Lands (or the responsible Minister under the Act). The Minister is the primary approval and direction authority. The regulations give the Minister substantial leverage over the Authority's planning, but also require the Minister to try to reach agreement (regs 5, 13) and consult before directing modifications (regs 9(3), 17(3)). The Minister must also table the SCI in Parliament (reg 16(2)) and consider requests to delete commercially sensitive material (reg 16(3)). The Minister cannot act without the Treasurer's concurrence on final agreements and modifications (regs 10, 18).

The Treasurer. The Treasurer holds a veto over all agreements and modifications to both the SDP and SCI. The regulations do not prescribe any consultation or timing requirements on the Treasurer. This gives the Treasurer substantial influence over the Authority's capital expenditure, borrowing, pricing, and dividend policies, which are listed SCI matters (reg 12(3)(d)-(f)). The Treasurer's concurrence requirement means that a board wanting a particular dividend policy or pricing arrangement must satisfy both the Minister and the Treasurer.

Parliament. The SCI must be laid before each House of Parliament within 14 days of agreement (reg 16(2)). However, commercially sensitive information may be deleted at the Minister's discretion (reg 16(3)), reducing Parliament's ability to scrutinise fully. There is no equivalent tabling requirement for the SDP, making it entirely an executive document.

Customers and lessees of the Authority. The SCI must include proposed pricing arrangements (reg 12(3)(f)) and CSO details including costings and compensation (reg 12(3)(k)-(l)). While the SCI is not directly binding on third parties, it signals the Authority's pricing intentions. The SDP must consider service efficiency and effectiveness and customer service arrangements (reg 4(3)(a)), which indirectly affect service quality and pricing outcomes.

The general public and commercial stakeholders. Those who deal with the Authority (e.g., land buyers, lessees, developers) are affected by the Authority's objectives and targets embedded in the SDP and SCI. However, there is no public consultation requirement in the regulations. The documents are internal planning tools subject to Ministerial and Treasury control, not public commitments.

Government policy makers. The SDP requires the board to consider "relevant government policy" (reg 4(3)(a)). This import means that changes in government policy can be injected into the Authority's planning through the Minister's direction power. The SCI must also comply with any reporting requirements the Minister imposes under reg 12(3)(i). The regulations thus make the Authority a vehicle for implementing government land policy, consistent with Ministerial direction.

The Treasurer's Department and the Department of Treasury. In practice, the concurrence requirement (regs 10, 18) will involve Treasury officials reviewing draft SDPs and SCIs before the Treasurer gives or withholds concurrence. This creates a compliance burden on the Authority to satisfy Treasury expectations on financial matters such as dividends, borrowing, and capital expenditure.

Board duties. The primary duty is to prepare and submit draft SDP and SCI to the Minister at least three months before the financial year start (regs 3, 11). The board must try to reach agreement with the Minister "as soon as possible" and at least one month before the financial year for the SDP, and by the start of the financial year for the SCI (regs 5, 13). The board must comply with any request from the Minister to consider or further consider a matter and revise the draft "as soon as is practicable" (regs 6(2), 14(2)). The board must comply with any Ministerial direction to take specified steps or make modifications (regs 6(4), 14(4)). Similarly, the board must comply with any Ministerial direction to modify an agreed SDP or SCI (regs 9(2), 17(2)). The board must give written notice of financial difficulty under section 24C(1) of the Act, including reasons and other relevant information (reg 19). The board must consider prescribed matters when preparing the SDP (reg 4(3)). When preparing the SCI, the board must ensure it is consistent with the SDP (reg 12(2)) and include the enumerated matters unless exempted (reg 12(3)-(4)).

Board rights. The board has a limited right to request deletion of commercially sensitive matters from the copy of the SCI laid before Parliament; but the Minister "may" comply, not must (reg 16(3)). The board must be consulted before the Minister directs modifications to an agreed SDP or SCI, and the Minister must take the board's views into account (regs 9(3), 17(3)). This consultation right is procedural only; the Minister can still direct modifications after consultation. The board can agree with the Minister on matters to be considered in the SDP beyond the statutory list (reg 4(3)(b)) and on the period of the SDP (reg 4(1)). The board may request the Minister to exempt matters from the SCI (reg 12(4)) and can request modifications to agreed documents with Ministerial agreement (regs 9(1), 17(1)).

Minister's powers and duties. The Minister has powers to return drafts, request revisions, direct changes unilaterally if no agreement, direct modifications after consultation, exempt SCI matters, and delete commercially sensitive information from the tabled SCI. The Minister also has the duty to try to reach agreement (regs 5, 13), consult before directing modifications (regs 9(3), 17(3)), table the agreed SCI in Parliament within 14 days (reg 16(2)), and obtain the Treasurer's concurrence before agreeing to or directing any modifications (regs 10, 18). The Minister may also agree with the board on matters to consider (reg 4(3)(b)) and on the SDP period (reg 4(1)).

Treasurer's power. The Treasurer holds a veto power: the Minister cannot agree to any draft or direct any modification without the Treasurer's concurrence (regs 10, 18). The regulations impose no limitations on when the Treasurer must respond or what factors the Treasurer must consider. This is a pure executive check on the Authority's planning documents.

No rights for third parties. The regulations create no rights for customers, lessees, competitors, or the public. The planning documents are internal to the Authority and government. Even the tabling of the SCI can have commercially sensitive information redacted, limiting public scrutiny.

The regulations themselves do not create any specific penalties, offences, or monetary fines for non-compliance. Enforcement is indirect, relying on the Minister's direction powers and the underlying Act. Non-compliance by the board with a Ministerial request to revise a draft (regs 6(2), 14(2)) or a direction to take specified steps or make modifications (regs 6(4), 14(4), 9(2), 17(2)) would constitute a breach of the regulations. The regulations do not specify the consequences of such a breach. The likely enforcement mechanism is through the Act: the Minister could potentially remove board members for failing to comply with a lawful direction, though this is not stated in these regulations. The board must also comply "as soon as is practicable" - a deliberately vague timeframe that invites dispute.

The failure to submit a draft SDP or SCI on time (three months before financial year start) is also not expressly penalised, but would trigger the Minister's unilateral direction powers earlier, or entitle the Minister to impose a plan without the board's input.

The Treasurer's concurrence requirement (regs 10, 18) has indirect enforcement effect: any agreement or direction made without the Treasurer's concurrence would likely be invalid as ultra vires. The board could arguably refuse to implement such a direction, but the regulations do not provide a formal mechanism for challenging an improperly obtained concurrence.

The notice of financial difficulty (reg 19) is the only provision with a specific formality: it must be in writing, provide reasons, and provide other relevant information. There is no prescribed consequence for failing to give such notice, but the Act (section 24C) presumably provides for consequences if the board fails to notify the Minister of financial difficulty.

The tabling requirement (reg 16(2)) is a duty on the Minister, not the board. If the Minister fails to table the SCI within 14 days, that failure is not penalised in the regulations. The board's right to request deletion of commercially sensitive information (reg 16(3)) is not enforceable if the Minister refuses; the board has no further remedy.

In summary, these regulations rely on hierarchical control and accountability to the Minister, not on statutory penalties. The board faces political and administrative consequences for non-compliance - potential dismissal, loss of ministerial confidence, or adverse reporting to Parliament. There is no independent enforcement body, no power to impose fines, and no provision for court orders.

The regulations are subsidiary to the Western Australian Land Authority Act 1992 (the Act). They are made under that Act and must be read with it. Key cross-references: the definition of "community service obligation" is adopted from section 25A(3) of the Act (reg 2). The notice of financial difficulty in regulation 19 implements section 24C(1) of the Act. The tabling requirement for the SCI references section 45A of the Act (reg 16(2): "dealt with in accordance with section 45A of the Act").

Part 3A was deleted by the Government Trading Enterprises Regulations 2023 (SL 2023/100 r. 42), effective 1 July 2023. That deletion suggests that Part 3A may have contained provisions that were superseded by broader government trading enterprises regulations. The deletion is significant: it removed a whole part of the regulations, meaning any obligations or procedures that were in Part 3A no longer apply. The user's source does not include the text of former Part 3A, so its content is unknown from this document, but its removal indicates a rationalisation of regulatory requirements for the Authority.

The regulations also interact with the Financial Management Act 2006 (WA) and associated Treasurer's instructions, particularly through the SCI's requirements for accounting policies (reg 12(3)(h)), capital expenditure and borrowing (reg 12(3)(e)), and dividend policy (reg 12(3)(d)). The Treasurer's concurrence requirement (regs 10, 18) likely aligns with the Treasurer's broader financial oversight of statutory authorities.

The Government Trading Enterprises Regulations 2023 themselves are relevant: they amended these regulations to delete Part 3A. This suggests the Authority is now subject to uniform or consolidated regulations for government trading enterprises, of which the Authority is one. Other government trading enterprises may face similar or identical planning requirements.

The regulations do not explicitly refer to the State Records Act 2000, the Public Sector Management Act 1994, or the Corruption, Crime and Misconduct Act 2003, but the Authority as a public body will be subject to those laws generally. The planning documents generated under these regulations would be government records and potentially subject to disclosure under the Freedom of Information Act 1992 (WA), subject to exemptions for commercial information (which the SCI tabling provisions already anticipate, reg 16(3)).

There is no interaction with competition or consumer laws apparent on the face of the regulations. The SDP's requirement to consider "market environment" and "pricing" (reg 4(3)(a)) indicates the Authority operates in markets, but the regulations do not constrain pricing behaviour directly other than through the Minister's approval of the SCI pricing arrangements.

The regulations were originally made on 27 May 1999 and published on pages 2137-44 of the Western Australian Government Gazette on that date. They commenced on 27 May 1999. The first amendment was the Western Australian Land Authority Amendment Regulations 1999, published on 9 November 1999 (page 5689), also commencing on 9 November 1999. The source does not detail the content of that 1999 amendment, but it appears to have been a minor or correcting amendment soon after the original making.

The most significant amendment occurred on 1 July 2023, when the Government Trading Enterprises Regulations 2023 (SL 2023/100, Part 4 Division 2) amended these regulations to delete Part 3A (r. 42). The source shows "[Part 3A deleted: SL 2023/100 r. 42]". This deletion removed an entire part of the regulations, the content of which is not reproduced. The deletion took effect from 1 July 2023 (see r. 2 of SL 2023/100). This suggests a consolidation or simplification of regulatory requirements for the Authority, possibly moving those provisions to the Government Trading Enterprises Regulations 2023 itself.

The compilation table indicates that the regulations as at 2023 include those three amendments. There are no further amendment entries. The regulations remain current as at the date of the published compilation (2023).

The deletion of Part 3A is noteworthy for practitioners: any obligations that were previously in Part 3A no longer apply. The board should ensure it is not still complying with old requirements that have been removed. The regulations now consist of Parts 1, 2, 3, and 4 (with Part 4 containing only one regulation). The core planning framework remains intact.

There is no amendment history for the Act itself in this source; the regulations are subsidiary.

The source does not disclose any litigation history. The regulations are procedural and internal to government operations, making them unlikely to be the subject of direct litigation. Challenges could hypothetically arise on grounds of procedural fairness (e.g., whether the Minister properly consulted before directing modifications) or ultra vires (e.g., a direction given without the Treasurer's concurrence). However, no cases are cited, and no reported decisions are referenced. The regulations have been in force since 1999 with only one substantive amendment (deleting Part 3A), suggesting they have not been controversial or frequently challenged.

Boards aggrieved by Ministerial directions might seek judicial review on administrative law grounds, but the regulations explicitly require the board to comply with directions and do not provide a board right of appeal. The consultation requirements (regs 9(3), 17(3)) are weak - the Minister need only take views into account, not follow them. A court might infer a duty to give genuine consideration, but the threshold for review is high.

The notice of financial difficulty (reg 19) could give rise to disputes if the Minister disagrees with the board's assessment of financial difficulty, but the Act (section 24C) would govern the consequences, not these regulations.

In summary, there is no known litigation history identifiable from the source. The regulations are low-litigation instruments, typical of internal government planning controls.

Minister can impose a plan if no agreement. The most significant gotcha is that the Minister can unilaterally direct the board to take specified steps or make modifications to a draft SDP or SCI if agreement is not reached one month before the financial year (regs 6(3), 14(3)). The board must comply "as soon as is practicable". This means the board cannot drag its feet to maintain a favourable draft; the Minister can override. The default document also includes any Minister-directed modifications made before the year start (regs 7(2), 15(2)), so the board cannot gain leverage by delaying.

Treasurer's concurrence is a hidden veto. The Treasurer's concurrence requirement (regs 10, 18) is not subject to any time limit or criteria. The Minister could agree with the board in principle, but the Treasurer could withhold concurrence indefinitely, leaving the board without an agreed document. The default document then operates, which may be less favourable. The board has no way to compel the Treasurer to decide.

No requirement for public consultation or tabling of SDP. Unlike the SCI, the SDP is not tabled in Parliament. There is no public consultation requirement for either document. The board's planning is entirely internal to government, with no transparency for stakeholders who may be affected by land development decisions, pricing, or service changes. The commercially sensitive deletion power for the SCI (reg 16(3)) further limits parliamentary scrutiny.

"As soon as is practicable" is vague. Multiple provisions require the board to comply with Ministerial requests and directions "as soon as is practicable" (regs 6(2),(4); 14(2),(4); 9(2); 17(2)). This creates uncertainty: what is "practicable"? The board could be criticised for taking too long, but there is no defined deadline. Conversely, the Minister could demand impossible speed. This vagueness could be exploited by either side.

Consultation before direction is weak. The Minister must consult the board before directing modifications to an agreed SDP or SCI (regs 9(3), 17(3)), but only "take its views into account". There is no requirement to reach agreement, no independent mediator, and no right of appeal. The board's views can be dismissed.

SCI must be consistent with SDP, but SDP may be imposed. The board must ensure the SCI is consistent with the SDP (reg 12(2)). If the Minister imposed an SDP that the board disagreed with, the board must still prepare a SCI consistent with that imposed SDP. The board cannot use the SCI to deviate from the Minister's strategic direction.

Exemption from SCI content is discretionary. The Minister may exempt the Authority from including any matter in the SCI (reg 12(4)). This is a double-edged sword: it could reduce compliance burden, but the board cannot demand an exemption. The Minister could refuse an exemption, forcing the board to include extensive detail.

Deletion of Part 3A may have removed other duties. The deletion of Part 3A by the 2023 amendment means the board should verify it is not inadvertently complying with old obligations. The source does not state what Part 3A contained, so boards must cross-check the amendment history to ensure they are not following obsolete procedures.

Notice of financial difficulty triggers oversight. The board must provide reasons and other information when notifying financial difficulty (reg 19). There is no de minimis threshold; even minor financial difficulties must be reported in writing with reasons. This imposes a compliance cost and may trigger Ministerial intervention.

The board must establish a rolling annual cycle for preparing, submitting, negotiating, and finalising the SDP and SCI. The timeline is tight. Drafts must be submitted at least three months before the start of the financial year (regs 3(2), 11(2)). For a July-June year, that means submission by 31 March. The board and Minister must try to agree on the SDP at least one month before the financial year (i.e., by 31 May) (reg 5), and on the SCI by the start of the financial year (i.e., 1 July) (reg 13). The board should aim for earlier completion to allow for iterative revisions and to avoid the Minister's unilateral direction powers.

Step 1: SDP preparation. The board should convene a meeting well before the submission deadline to consider the matters in reg 4(3): market environment, product development, pricing, service efficiency, land asset strategies, capital expenditure, customer service, government policy, and CSOs. The board should also discuss any additional matters agreed with the Minister (reg 4(3)(b)). The SDP must cover a forecast period of five years (or lesser if agreed) (reg 4(1)). The board should draft economic and financial objectives and operational targets.

Step 2: SCI preparation. Once the SDP is at least in draft, the board should prepare the SCI, ensuring consistency with the SDP (reg 12(2)). The SCI must include all twelve matters in reg 12(3) unless the Minister has granted an exemption (reg 12(4)). Particular care is needed on pricing arrangements, dividend policy, and CSO costings and compensation, as these are sensitive and require Treasurer concurrence. The SCI should be accompanied by a draft that the board believes is suitable for submission.

Step 3: Submission and negotiation. The board submits both documents to the Minister (and likely to the Minister's department and the Treasurer's office in practice). The board must be prepared to revise the drafts if the Minister returns them with requests (regs 6(1), 14(1)). The board should document its willingness to negotiate and try to reach agreement. Minutes of board meetings and correspondence should record the board's efforts.

Step 4: Responding to Ministerial directions. If the Minister issues a direction under reg 6(3) or 14(3) (failure to agree), the board must comply "as soon as is practicable". The board should promptly convene a meeting to implement the direction, recording the steps taken. Even if the board disagrees with the direction, compliance is mandatory. The board could note its dissent in the records but must still act.

Step 5: Agreement and modification. Once agreement is reached, the board must note the date and obtain evidence of the Minister's and Treasurer's concurrence. The SDP becomes operative (reg 8); the SCI must be tabled in Parliament within 14 days (reg 16(2)). The board can request deletion of commercially sensitive material from the tabled copy (reg 16(3)). The board should prepare a redacted version for that purpose. Any subsequent modifications to agreed documents require the board to seek the Minister's agreement or comply with a Ministerial direction (regs 9, 17). The Treasurer's concurrence is again required.

Step 6: Monitor and report. The board must monitor performance against the SDP and SCI. The SCI must specify performance targets and information to be given to the Minister (reg 12(3)(g),(i)). The board should prepare half-yearly and annual reports consistent with the SCI.

Step 7: Financial difficulty notice. If the board forms an opinion that the Authority is in financial difficulty, it must give written notice to the Minister under section 24C(1) of the Act, providing reasons and other relevant information (reg 19). This should be done as soon as the opinion is formed, not delayed.

Step 8: Review and continuous improvement. The board should review compliance with these regulations annually, updating its processes. The deletion of Part 3A should be noted; any remaining requirements under other legislation (e.g., GTE regulations) must also be followed. The board should maintain a compliance checklist tracking submission dates, agreement dates, and Treasurer concurrence dates.

Documentation. The board should keep copies of all drafts, correspondence with the Minister and Treasurer, records of consultations, and evidence of Treasurer concurrence. These may be needed for internal audit or parliamentary scrutiny.

External advice. Given the legal consequences (even without penalties), the board may wish to seek legal advice on the scope of its compliance obligations, particularly the duty to try to reach agreement and the limits of the Minister's direction power. However, the regulations give the Minister near-absolute power, so legal challenges are unlikely to succeed.