Public Law Essentials 02: Delegations and authorisations

Express power of delegation

A statute vesting power in a person can also provide a power for the person to delegate that power to another person.  Delegations confer on others the legal capacity to exercise statutory based powers.

For example, section 496 of the Migration Act 1958 (Cth) provides:

"(1)  The Minister may, by writing signed by him or her, delegate to a person any of the Minister's powers under this Act.

(1A)  The delegate is, in the exercise of a power delegated under subsection(1), subject to the directions of the Minister.
The Secretary may, by writing signed by him or her, delegate to a person any of the Secretary's powers under this Act."

The effect of this provision is to allow the Minister or the Secretary to issue a written instrument delegating any of his or her statutory powers to another person.

Nature of delegated power

The concept of delegation involves an authorisation to act personally rather than as an agent. This means the delegate exercises the powers delegated to them by acting in their own name, not as an agent of the delegating authority.

Codified principles

Section 34AB of the Acts Interpretation Act 1901 (Cth) codifies the general principles relating to delegations.

"(1) Where an Act confers power on a person or body (in this section called the authority) to delegate a function, duty or power:

(a) the delegation may be made either generally or as otherwise provided by the instrument of delegation;

(b) the powers that may be delegated do not include that power to delegate;

(c) a function, duty or power so delegated, when performed or exercised by the delegate, shall, for the purposes of the Act, be deemed to have been performed or exercised by the authority;

(d) a delegation by the authority does not prevent the performance or exercise of a function, duty or power by the authority; and

(e) if the authority is not a person, section 34A applies as if it were."

Paragraph 34AB(1)(b) ensures that 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.

Paragraph 34AB(1)(c) ameliorates an important common law principle that a delegate exercises the delegated power personally, in his or her own name, not "on behalf of" the delegating authority.

Paragraph 34AB(1)(d) recognises that 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 delegating authority. The delegating authority can still exercise the powers as necessary.

Forms of delegations

 A statute which confers an express power of delegation on a person usually requires that power to be exercised in writing by making a written instrument.

The instrument must be in the form that allows a delegate to be identified with sufficient certainty (Owendale Pty Ltd v Anthony [1967] HCA 52). Modern instruments of delegations generally achieve this by specifying certain classes of position-holders to whom powers are delegated. This has the advantage of removing the need to make unwieldy instruments that individually name every member of a large class ("all APS officers"), a new instrument every time the person occupying that position changes (acting arrangements, promotions etc). It is, of course, possible for delegations to be made to named individuals.

This practice is permitted through section 34AA of the Acts Interpretation Act 1901, which allows a delegation to be made with reference to a person or persons from time to time holding, occupying or performing the duties of a specified office or position. It states:

"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 provision also means that if a delegation is made to persons holding a position in a class of positions (for example, an Executive Level 1 position in a specific branch / division of a department), the delegation will operate in relation to positions falling within that class of positions, even if those positions are created after the delegation is given. This enables a person who occupies a newly created position within a particular branch or division to be automatically vested with the delegated power, avoiding the need for a new instrument of delegation be made specifically in favour of that person.

Delegates must exercise delegated power by applying their own discretion

It is well established that when a power is so delegated, the delegate must exercise their own independent discretion in the exercise of their delegated power (Northern Land Council v Quall [2020] HCA 33).

Section 34A of the Acts Interpretation Act provides:

"If:

(a) under an Act, a person’s exercise of a power, or a person’s performance of a function or duty, is dependent upon the person’s opinion, belief or state of mind in relation to a matter; and

(b) that power, function or duty has been delegated under that or any other Act;

the delegate may exercise that power, or may perform that function or duty, upon the delegate’s opinion, belief or state of mind in relation to that matter."

This provision expresses the fundamental effect of a delegation of a power, that is, a person to whom a power is delegated under an express power of delegation must exercise the delegated power by applying their own discretion.

As emphasised above, the relevant statutory power is exercised by the delegate in their own right and not on behalf of the delegating authority, and consequently, there is generally a limited degree of legal control over the person exercising that power (Northern Land Council v Quall, [83], Nettle and Edelman JJ). Authorisations, in contrast, are generally accompanied with "conditions", and we have discussed this in more detail below.

Delegating authority cannot direct delegate

The fact that a delegate exercises a delegated power by applying their own discretion and, at law, acts in their own capacity, means that the person who delegates the power cannot either:

1. direct the delegate in the exercise of the delegate’s discretion; or
2. make the exercise by the delegate of the power conditional on certain events occurring, or on the delegate taking certain action, for example, consulting another person.

The law is clear that where a power is given to a particular person or office, that power cannot be exercised at the direction of someone else (Bread Manufacturers of New South Wales v Evans [1981] HCA 69). This means the person should not act under the direction and at the "behest" of another person.

Exercising a personal discretionary power at the direction or "behest" of another person constitutes an "improper exercise of a power" and a ground of judicial review for the purposes of ss 5(1)(e) and (2)(e) of the Administrative Decisions (Judicial Review) Act 1977 (Cth). This encompasses situations where the decision-maker gives "no real independent attention" to the discretion which is conferred upon him or her, so that the exercise of discretion is really the exercise of that discretion by some other person (Telstra Corporation Ltd v Kendall [1995] FCA 1481).

When can directions be given

The common law principle that a delegate vested with discretionary power must exercise that power independently, and not at the direction of some other decision-maker, may be overridden by express statutory power.

For example, section 499 of the Migration Act 1958 (Cth) states the Minister may give written directions to a person about the exercise of powers. Section 496(1A) then expressly states that the delegate is, in the exercise of a power delegated under subsection (1), subject to the directions of the Minister made under section 499. As an example, by exercising these powers, the Minister makes directions setting out the objectives, principles and matters to be taken into consideration when delegates exercising the discretion to refuse or cancel a visa on character grounds under section 501 of the Migration Act 1958.

Express power of authorisation

Nature of power

The power to authorise may be express or implied. The implied power to authorise is discussed at the next section.

The person on whom power is conferred by statute can also be conferred with a power to authorise another person to exercise that power. This most commonly takes in the form of an express statutory provision which allows a person to designate an identified person or persons to be appointed as "authorised officers" to exercise specified statutory powers.

For example, section 291 of the Export Control Act 2020 (Cth) provides:

"(1) The Secretary may, in writing, authorise a person, or each person in a class of persons, to be an authorised officer under this Act if:

(a) the person, or each person in the class of persons, is an officer or employee of a Commonwealth body; or

(b) the person, or each person in the class of persons, is an officer or employee of a State or Territory body."

Like a person exercising delegated powers pursuant to an instrument of delegation, a person acting pursuant to a statutory authorisation performs the relevant function or exercises the relevant power in their own right. It is important to note that these principles apply as a matter of common law, not through the Acts Interpretation Act (which generally codifies the principles relating to delegations).

Forms of authorisations

Like an instrument of delegation, an instrument of authorisation can either specify a class of position-holder or the name of individually authorised persons.

The instrument will generally also specify the functions and powers that the person may perform or exercise as an authorised officer (see, for example, section 291(11)(i) of the Export Control Act 2020).

Conditions

While express authorisations generally have the same characteristics as delegations, statutory authorisations may have conditions attached to them. This is an important aspect of the statutory authorisations that differ from delegations.

For example, under section 292 of the Export Control Act 2020:

"(1) If, under section 291, the Secretary authorises a person to be an authorised officer, the authorisation is subject to:

(a) the conditions (if any) in relation to the authorisation prescribed by the rules (other than any of those conditions that the Secretary decides are not to be conditions of the authorisation); and

(b) any additional conditions that the Secretary considers appropriate; and

(c) if the person is authorised to be a third party authorised officer—the condition that the officer must comply with subsections (2) and (3) of this section."

Implied power of authorisation

Nature of power

In Carltona Ltd v Commissioners of Works [1943] 2 All ER 560, Lord Greene said:

"In the administration of government in this country the functions which are given to ministers (and constitutionally properly given to ministers because they are constitutionally responsible) are functions so multifarious that no minister could ever personally attend to them...[therefore] The duties imposed upon ministers and the powers given to ministers are normally exercised under the authority of ministers by responsible officials of the department. Public business could not be carried on if that were not the case."

This principle in Carltona was adopted in Australia by Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40, in which Justice Mason stated that the presence of an express statutory power of delegation does not necessarily exclude the existence of an implied power to delegate or, to express it more accurately, to act through the agency of others:

"The cases in which the principle has been applied are cases in which the nature, scope and purpose of the function vested in the repository made it unlikely that Parliament intended that it was to be exercised by the repository personally because administrative necessity indicated that it was impracticable for him to act otherwise than through his officers or officers responsible to him."

In considering whether there is an implied power to authorise others it is necessary to consider, by looking at the nature, scope and purpose of the power, whether Parliament intended a power be exercised personally.

Generally, a power to authorise can be implied where it is not administratively practicable to exercise an express power of delegation, or perhaps also where an express power of delegation is limited (Peko-Wallsend; see also, O’Reilly v State Bank of Victoria Commissioners [1983] HCA 47).

In O'Reilly, it was common ground that (i) the Commissioner of Taxation and his delegate, the Deputy Commissioner, had power to issue a particular notice in writing, but (ii) the Deputy Commissioner could not further delegate that power. Chief Justice Gibbs accepted that the notice in writing could nevertheless be issued "through a properly authorised officer", named Mr Holland, who acted "on behalf of the Deputy Commissioner" with his acts being the acts of the Deputy Commissioner. Justice Wilson separately added the power which Mr Holland was authorised to exercise remained a power delegated to the Deputy Commissioner and was only able to be exercised "in his name and on his behalf".

This means, in contrast to a person acting pursuant to an instrument of delegation or a statutory authorisation, a person acting pursuant to a Carltona authorisation does not act in their own right but, rather, as the "alter ego" or agent of the person who gives the authorisation.

It is also important to note that a person with implied authorisation, or under a "Carltona" authorisation, acts for and on behalf of the person who gives the authorisation and (in contrast to the case of a delegation) that person remains personally responsible for an act performed under his or her authority. In other words, a decision will be taken to be that of the person in whom the power is vested, not of the authorised person. Consequently, a person acting under authorisation acts in the name of the person who holds the power and must execute documents for and on behalf of that person.

Forms of authorisations

Although implied authorisation by its nature does not need to be in writing and can simply be implied by virtue of the circumstances, it is good practice to create a written instrument of authorisation in the case of an implied authorisation as it removes the need to infer the authorisation. A written instrument of authorisation will provide greater certainty as to who has authority to exercise a particular power.

Survivability of delegations and authorisations – machinery of government changes

As explained below, delegations and express statutory authorisations survive when there is a change to the identity of the delegator or the person empowered to appoint authorised officers. However, implied or Carltona authorisations are generally regarded as not surviving in the event that there is a change to the authorising person.

Generally speaking, machinery of government changes involving changes to Ministers, departments and Secretaries following an election mean that it is good practice to review instruments of delegation and authorisation.

Delegations and express statutory authorisations

Following an election, instruments of delegation made by a Minister or Secretary continue to have effect if the change is merely the person who holds the office of Minister or Secretary or the designated name of the Minister, Secretary or department.

Also, delegations do not automatically cease to have effect merely because there is a change in the identity of the person who is the delegator. In Kelly v Watson (1985) 10 FCR 305, Justice Neaves stated:

"There is . . . nothing in the relationship between the person delegating the power and the delegate, as there would be if the relationship was one of principal and agent, which would require that the delegation should cease to have any valid operation upon the delegator ceasing to hold office."

As express statutory authorisations operate in a similar way to delegations, they survive a change in the identity of the person who is empowered to authorise officers.

Nevertheless, it is advisable that where a department is abolished, or where there is a transfer of functions from one department to another department, delegations and express authorisations in place in respect of the original department are to be reviewed and new ones made. It is also good administrative practice to provide new office holders with the opportunity to reconsider arrangements and issue new instruments of delegation.

Generally, sections in an Act that confer a power to delegate do not ordinarily deal expressly with the revocation or variation of such delegations. Instead, section 33(3) of the Acts Interpretation Act enables this. It states that where an Act confers a power to make any instrument of a legislative or administrative character, the power shall be construed as including a power exercisable in the like manner and to repeal, rescind, revoke, amend, or vary any such instrument. This gives the new office holder of the power to expressly revoke or vary delegations given by the person who previously was the delegator.

Implied authorisation

The position is unsettled in relation to implied authorisations providing for the exercise of powers by specified persons "for and on behalf of" an office holder.

The generally accepted view is that the principles enunciated in Kelly v Watson do not apply to implied authorisations, as they involve the characteristics of principal and agent relationship. Therefore, the predominant view is that such authorisations cease to have effect when the person holding the relevant office changes, and so the instruments of authorisation must be remade.

Of relevance, section 19D of the Acts Interpretation Act operates to save the validity of acts done by authorities and in relation to the exercise of a power, function or duty provided under any form of Commonwealth law or agreement. However, the savings provision will only apply where there is a reasonable but mistaken belief about the conferral of powers, functions or duties under machinery of government changes.

Of note, the Full Federal Court held in Commissioner of Taxation v Mochkin [2003] FCAFC 15 that remaking authorisations in the context of particular powers in the Income Tax Assessment Act 1936 was not required. The Full Court concluded that:

"The fact that an authority, such as a Deputy Commissioner, authorises a subordinate officer to perform specified functions or exercise specified powers does not import into the "relationship" between the authority and the subordinate the principles governing a principal/agent relationship under the general law. There is nothing in O'Reilly v State Bank to support such a suggestion. On the contrary, the judgment of Gibbs J emphasises (at 12) the importance of construing the ITAA in a manner that acknowledges the practical difficulties of administering legislation which, for example, requires assessments to be issued annually to millions of taxpayers. Potentially serious problems would be created if fresh authorisations had to be executed every time a Deputy Commissioner, for whatever reason, leaves office. I see no reason for incorporating into the construction of the ITAA concepts derived from a different field of discourse that served no discernible legislative policy..."

Notwithstanding Mochkin, the safest course is for departments to ensure that written implied authorisations are remade without delay where the person holding the relevant office has changed as a result of the election and the changes in the administrative arrangements.

It is a fundamental principle of administrative law that when Parliament vests power in a person that person is required to exercise the power personally. The principle is expressed in the maxim delegatus non potest delegare, which translates to "no delegated powers can be further delegated".

However, the high volume of decisions made by the Government means that it may not practicable, nor effective, for a person to personally exercise the vested power. Consequently, common law and statutory mechanisms have evolved over time to allow statutory powers to be divulged into another person, by way of delegating it to another person or authorising it to be exercised by another person.

There are three main ways in which the power can be vested on another person.

This Public Law Essentials discusses the principles and practicalities of delegations and authorisations, and addresses three key matters:

• the nature of powers of delegations and authorisations;
• the effects of delegation and authorisation, how powers should be exercised, and important matters which the delegates and authorised officers should keep in mind; and
• the circumstances in which the instruments of delegation and authorisation need to be reviewed, renewed or remade, including changes arising from Machinery of Government changes.