Read full article from Australian Government Solicitors website: https://www.ags.gov.au/publications/legal-briefing/lb-20220616 (url)
Legal briefing – Delegations, authorisations and the Carltona principle AGS (14.6Mb printed to pdf as at 17.12.2024)
Excerpt:
A delegation made generally or as otherwise provided
Section 34AB(1)(a) of the Interpretation Act does not alter the fundamental effect of a delegation of power which is expressed above; that is, that delegates must exercise their own discretion and are not subject to direction or conditions imposed by the person who delegates the power (in the absence of express legislative provisions to the contrary). Rather, it is concerned with the extent to which a power may be delegated.
Some statutory powers may be exercised with respect to a number of different matters, or classes of matters, and are capable of division into parts.7 Section 34AB(1)(a) recognises that in those cases, a person in whom a power is vested may, under an express power of delegation, delegate part of that power – that is, the power so far as it relates to particular matters or classes of matters. Where such a delegation is made, care must be taken to avoid expressing the delegation as imposing conditions, rather than delegating only part of a power.
The power to delegate cannot be delegated
Section 34AB(1)(b) of the Interpretation Act ensures that if parliament vests power in a particular person, it is for that person to exercise the power or, if there is an express power of delegation, it is for that person to choose which other persons may exercise the power. In other words, the person nominated by parliament to exercise the power will always retain control over the class of persons who are designated to exercise the power. This principle can be modified by an express power of sub-delegation.8
The exercise of a power by a delegate is deemed to be the exercise by the delegator
Section 34AB(1)(c) of the Interpretation Act is intended to preclude a recipient of a delegate’s decision appealing to the delegator of the power to make a further decision personally. Section 34AB(1)(c) only applies for the purpose of the Act containing the power to delegate. So, for example, a decision made by a delegate is, for the purpose of another Act such as the Administrative Decisions (Judicial Review) Act 1977, a decision of the delegate.
The delegator can still exercise a power which has been delegated
Section 34AB(1)(d) of the Interpretation Act recognises that (subject to any contrary indication in the relevant Act) a delegation under an express power of delegation, while enabling a delegate to exercise powers in their own right, does not result in the power being removed from the delegator. The delegator can still exercise the powers as necessary.9
Some powers are not delegable
It is important to note that, despite the presence of a seemingly broad delegation provision, some powers may not be delegable. A power may be non-delegable either because there is an express exception to the delegation power or, because as a matter of statutory interpretation, it is evident that the power was intended to be exercised personally.
Where the legislation entrusts a function to a person with specialist skills or qualifications, there may be a strong argument that the function could not be entrusted (by way of delegation or authorisation) to a person without such specialist skills or qualifications. For example, occupational health and safety legislation may provide medical practitioners with certain functions.
Choice of delegate
The choice of delegate is largely a matter to be determined by the person making the delegation. However, the choice of delegate may need to be reasonable. A decision to delegate power is an administrative decision which is subject to the ordinary principles of administrative law. The choice of delegate may also be expressly or impliedly limited by the legislation.10
Revoking a delegation
Sections in an Act that confer a power to delegate do not ordinarily deal expressly with the revocation or variation of such delegations. However, s 33(3) of the Interpretation Act generally operates so as to allow a delegator to repeal, rescind, revoke, amend or vary any delegation that they make by way of an instrument. This power is exercisable in the like manner and subject to the like conditions as the power to make the delegation by written instrument in the first place.
Delegations do not automatically cease to have effect merely because there is a change in the identity of the person who is the delegator.11 However, it is possible for the new holder of the power to expressly revoke or vary delegations given by the person who previously was the delegator.
Form of instruments of delegation
Legislation which confers an express power of delegation on a person usually requires that power to be exercised in writing, that is, by making a written instrument.12 An instrument of delegation most commonly specifies classes of position-holders to whom powers are delegated, removing the need to make a separate instrument for each and every person to whom those powers are delegated. It is also possible for delegations to be made to named individuals or the holders of named positions.
Delegation to classes of offices or positions
Section 34AA of the Interpretation Act provides:
Where an Act confers power to delegate a function, duty or power, then the power of delegation shall not be construed as being limited to delegating the function, duty or power to a specified person but shall be construed as including a power to delegate the function, duty or power to any person from time to time holding, occupying, or performing the duties of, a specified office or position, even if the office or position does not come into existence until after the delegation is given.
The purpose of this provision is to make it clear that an express power of delegation does not have to be exercised in favour of a nominated individual. Rather, it may be exercised by reference to a person or persons from time to time holding, occupying or performing the duties of a specified office or position.13
The Public Service Act 1999 generally does not operate by reference to ‘offices’, at least for APS employees.14 However, positions can be created by an agency head under the express power in s 77 of that Act or under an agency head’s general employer powers conferred by s 20 of that Act. Provided that the delegate can be identified with sufficient certainty, a delegation can be made to a position in an agency whether that position has been expressly created by an agency head under s 77 or has been identified in the exercise of the agency head’s general employer powers.
A valid delegation may also be made by reference to classifications. For example, a delegation could be given to persons holding positions at the EL1 classification in the ABC Branch of the DEF Division of the GHI Department. Such a delegation would be valid whether or not an agency head had created positions to be occupied by each of the persons holding those classifications in the specified branch of the specified division under s 77.
Delegate must be able to be identified
Section 34AA of the Interpretation Act effectively codifies the common law position about delegation to positions stated in Owendale Pty Ltd v Anthony.15 At common law, a delegation can be made to the holder of a position provided that the delegate can be identified with sufficient certainty.
In Owendale, the requirement of specificity was expressed in terms of the need to be able to identify the person to whom a power was delegated. The words specific and specify connote something explicit, definite and precise.16 Taking into account the common law history of delegations, a delegation will be to a person holding a ‘specified position’ if it is possible to identify the position at any given time. Applying the standard accepted by Windeyer J in Owendale,17 the test of whether a particular position will be identified clearly enough is if a person, who is familiar with public service classifications, would be able to identify the relevant position at a particular time.
Delegating to future positions
Section 34AA of the Interpretation Act extends the common law in one important respect. It is not possible at common law to delegate powers to the holder of a position which has not come into existence at the time a delegation is made.18
Section 34AA, however, provides that a power of delegation can be exercised in favour of a person holding, occupying or performing the duties of a specified office or position, even if the office or position does not come into existence until after the delegation is given. Those words make it clear that, if a delegation is made to persons holding a position in a class of positions, the delegation will operate for positions falling within the relevant class and which are created after the delegation is given.
Change in the person holding the position
Where legislation confers on a person holding a specified position the power to delegate a power vested in them as the holder of that position, a change in the person holding the position will not result in an instrument of delegation executed by a person who formerly held the position ceasing to have effect. This issue was considered by the Federal Court of Australia in Kelly v Watson,19 where Neaves J held that there was nothing in the relationship between a delegator and a delegate which required that a delegation cease to have any valid operation upon the delegator ceasing to hold office.20
Reading down an instrument of delegation to ensure its validity
An instrument of delegation made under a provision of an Act requiring the delegation to be in writing is, unless the contrary intention appears, so far as possible to be construed as being within the power of delegation conferred by the Act, even if the instrument is capable of being construed, to some extent, as in excess of the power of delegation.21