Delegations under the Public Service Act 1999 and subordinate legislation

Last updated: 13 Mar 2014

This page is: under review

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Note this page is under review. It has not yet been updated to reflect the Australian Public Service Commissioner's Directions 2016 which came into effect on 1 December 2016. Agencies should be aware that it may not reflect current legislative requirements.

Last updated: 15 August 2013

Introduction

This guide has been updated to take into account the amendments made to the Public Service Act 1999 (PS Act) by the Public Service Amendment Act 2013 and associated subordinate legislation, effective from 1 July 2013. Specific provisions of the PS Act and subordinate legislation identified in this guide reflect those that will be in place on that date[1].

These pages provide quite detailed and technical information about the delegation of powers and functions under the PS Act and subordinate legislation—the Public Service Regulations 1999 (the Regulations), the Australian Public Service Commissioner's Directions 2013 (the Directions) and the Public Service Classification Rules 2000 (the Classification Rules).

This guide does not specifically deal with:

  • other legislation relevant to APS employment which contain delegation powers, such as the Maternity Leave (Commonwealth Employees) Act 1973 (Maternity Leave Act) and the Long Service Leave (Commonwealth Employees) Act 1976 (LSL Act); or
  • delegation provisions included in many agencies' enterprise agreements.

However, much of the information set out in this guide will also be relevant in considering delegation issues under these instruments.

The management of delegations is crucial to the legitimacy of employment decisions and actions undertaken in the Australian Public Service (APS) – for example, where an Agency Head terminates the employment of an APS employee on the grounds of non-performance, or unsatisfactory performance, of duties and that termination decision is subsequently challenged, it is likely that the reviewing authority would examine whether the termination decision was made by a person who had the relevant authority to do so (in this case, either the Agency Head personally, or a person to whom a delegation had been made under section 29 of the PS Act).

The PS Act confers powers and functions on various offices including the Prime Minister, the Public Service Minister, Agency Ministers, the Australian Public Service Commissioner (the Commissioner), the Merit Protection Commissioner (MPC) and Agency Heads. Similarly, powers and functions are conferred through the subordinate legislation.

The PS Act and subordinate legislation allow for the person upon whom the powers and functions have been conferred to delegate them to another person. The PS Act and subordinate legislation do not require an Agency Head to delegate any powers or functions. Generally speaking, no limits are imposed on the powers or functions that an Agency Head may delegate or on the class of potential delegates, other than in relation to delegation to 'outsiders'.

In managing the delegation process, agencies should put in place strategies to ensure that:

  • delegations are within the scope permitted by the legislative framework
  • instruments of delegation are established with appropriate care and in accordance with the agency-wide standard
  • appropriate records of delegations, including those that have been superseded, are maintained
  • both the delegator and delegate understand their responsibilities
  • delegates possess the necessary skills and attributes to exercise the delegated powers and functions and receive appropriate training
  • effective performance management and accountability mechanisms are in place
  • appropriate internal audit, review and monitoring is undertaken
  • all delegations are regularly reviewed for appropriateness and accuracy.

Agencies are encouraged to obtain separate legal advice if there is any uncertainty about a delegation issue. Agencies should note the obligations under the Legal Services Directions 2005 issued by the Attorney-General, which require consultation in certain circumstances where an agency is seeking legal advice.

Generally speaking, agencies are required to consult the Australian Public Service Commission (the Commission) before obtaining legal advice, from any source, on the interpretation of the PS Act framework and other legislation for which the Commission is responsible such as the Maternity Leave Act and the LSL Act. Generally, agencies are also required to provide the Commission with a copy of the request for advice and the advice obtained. In certain circumstances, such as where privacy considerations are an issue, the Directions permit that the provision of the substance of the advice will suffice.

1. The Public Service Act and subordinate legislation

1.1 Delegation and authorisation

The relevant provisions of the PS Act framework that enable the delegation of powers and functions are:

  • Section 78 of the PS Act
  • Regulation 9.3
  • Clauses 8.1 and 8.2 of the Directions
  • Classification Rule 13.

Note that all of these provisions permit sub-delegation and also allow the delegator to make directions to delegates in relation to the exercise of powers of functions.

A fundamental effect of a delegation of a power made under an express power of delegation is that a person to whom the power is delegated must exercise the delegated power by applying his or her own discretion.

In addition to these formal powers of delegation, which result from an explicit power of delegation and require written instruments of delegation, the Courts recognise an implied power to authorise the exercise of certain powers—often referred to as the 'Carltona Principle'[2].

Under this principle, a person in whom a statutory power is vested may, in particular circumstances, be able to rely on an implied power to authorise another person to exercise the statutory power for and on his/her behalf. In these circumstances, the act of the authorised person is, at law, the act of the person in whom the power is vested by law. The person will be exercising the power for and on behalf of the person in whom the statutory power is vested. This is fundamentally different to the act of a delegate, which, at law, is the delegate's act and not the act of the delegator.

There is scope for Agency Heads to rely on Carltona authorisations for the exercise of some powers in certain situations, particularly where it may not be considered appropriate to delegate a power, a power may not be considered to be delegable or it is unclear whether the power is delegable.

  • From a policy perspective it may be considered inappropriate to delegate some key Agency Head powers, particularly in light of the power for the delegate to subdelegate.
  • Section 20 of the PS Act has raised questions as to its delegability. It is the Commission's view that the power and the responsibilities given to the Agency Head under section 20 are not delegable. It is possible however to authorise others to carry out the rights, duties and powers that are vested in the Agency Head as employer.

It is suggested that agencies seek legal advice if it is unclear whether the circumstances permit a Carltona authorisation to be safely relied upon.

1.2 Restrictions on the delegation and the exercise of powers and functions

Under section 78 of the PS Act, Regulation 9.3, clause 8.2 of the Directions and Classification Rule 13, an Agency Head may delegate a power or function to one or more persons (the first delegate). Under these provisions the first delegate may then delegate that power or function to another person (the second delegate), as appropriate. The second delegate cannot further delegate that power or function.

The consent of the Commissioner must be obtained if an Agency Head wishes to delegate, or a first delegate wishes to further delegate, a power or function to an 'outsider' (see Part 4 below).

Under section 78 of the PS Act, Regulation 9.3, clause 8.2 of the Directions and Classification Rule 13, an Agency Head may give directions to a delegate (the first delegate) in relation to a delegated power or function. A first delegate must comply with a direction by the Agency Head in relation to a delegated power or function and, where a further delegation is made, the first delegate must give a corresponding direction to the second delegate. While an Agency Head may give directions to the first delegate, this power does not include the power to direct the first delegate that they cannot further delegate the power or function to a second delegate.

An agency head may also limit the scope a delegation so that the delegate may only exercise a power in certain circumstances – for example the instrument of delegation could reasonably specify that a particular delegate could only exercise the power to engage a person as an APS employee where the employee is to be engaged at a certain classification level (e.g. APS 1-6 level) or a geographical area. Similarly, where an agency head delegates powers to a first delegate without any limitation, it would be open to the first delegate to impose limitations of this nature when delegating powers to a second delegate.

A delegation of this nature would limit the power which the delegate could exercise, but would not otherwise limit the discretion of the delegate, when exercising the power, to make a decision based on the delegate's own opinion. It would, generally speaking, be invalid to fetter the delegate's discretion or judgement with a limitation – e.g. it is not possible to limit a delegation by saying the delegate can only exercise a power to make a favourable decision. The power to be exercised is the whole power to make the decision on a matter and whole power to make a favourable or unfavourable decision must be delegated.

  • In other words it is not generally possible to limit a delegation by reference to the decision a delegate can make in a manner which negates the delegate's discretion to make a decision.

2. Administrative law principles governing the exercise of delegated powers

The delegation and application of powers and functions are subject to a number of principles of administrative law, including those contained in the Administrative Decisions (Judicial Review) Act 1977 (the ADJR Act). The ADJR Act provides that a person who is aggrieved by a decision to which the ADJR Act applies may apply for review of the decision on one or more of a number of specified grounds. These grounds, which provide a useful checklist for delegates, are, in summary:

  • The person who makes the decision must have jurisdiction, i.e. a valid delegation or authorisation to make the decision.
  • The decision must be authorised by the enactment under which it is made (e.g. the PS Act).
  • The procedures that are required by law to be observed in the making of the decision must be observed.
  • The decision must not be an improper exercise of the power conferred by the enactment— examples of this would be that:
    • an irrelevant consideration was taken into account
    • the power was exercised for a purpose other than that for which it was conferred
    • the discretionary power was exercised at the direction of another
    • the discretionary power was exercised in accordance with a rule or policy without regard to the merits of the case.
  • The decision must not be induced or affected by fraud.
  • There must be evidence or other material to justify the making of the decision.
  • The decision must not involve an error of law, whether or not the error appears on the record of the decision.
  • The decision must be made in accordance with the rules of natural justice.
  • The decision must not otherwise be contrary to law.

The Acts Interpretation Act 1901 (the AI Act) also contains provisions that are relevant to delegations, the effect of delegation and the exercise of certain powers and functions by a delegate. Further information on these provisions is at Appendix A.

2.1 Validity of an instrument of delegation

A delegation instrument should be carefully drafted to ensure that it clearly identifies:

  • the delegate
  • the section of the legislation that permits the delegation
  • the power or function being delegated
  • whether any limitations are to be imposed on the scope of the delegation (see Part 1.2 above).

Agency Heads may choose how they specify the person or persons to whom their powers or functions are to be delegated. The options are to:

  • name the relevant employee or employees to whom the powers or functions are delegated; or
  • specify that the power or function is delegated to the person or persons performing from time to time the duties specified in the instrument[3]; or
  • specify that a power is delegated to all persons performing duties at a particular classification level; or
  • specify that the power or function is delegated to the person or persons nominated from time to time to occupy a specified position created under section 77 of the PS Act.

Where any of the three last options is adopted, a delegation will not cease to operate where there is a change in the person occupying a position or performing the specified duties.

In drafting instruments of delegation, agencies may consider how the relevant powers to be delegated are to be set out. Rather than adopting a clause by clause formulation, it may be more appropriate to consider grouping delegations by function/topic e.g. in relation to engagement, termination, assignment of duties etc. However, if this approach is adopted, agencies should note that the instrument of delegation should still clearly identify the power in the PS Act and subordinate legislation that is being delegated and whether there are any limitations on the scope of the delegation.

This 'topic-based' approach may facilitate a better understanding of the scope of the powers that are being delegated; particularly in circumstances where powers in subordinate legislation are not severable from the primary power in the Act, or where certain provisions operate as a qualification or restriction on the exercise of another power and therefore are not themselves separately delegable (see Part 3 below and Appendices B, C and D for further information).

  • For example, in relation to the power to engage a person as an APS employee under section 22 of the PS Act, other parts of section 22 and certain provisions of the Regulations and Directions are inextricably linked to the section 22 power and are not considered to be separately delegable powers or functions.
  • Where certain legislative provisions operate as a qualification or restriction on the exercise of another power and are not themselves separately delegable, it is suggested that agencies ensure that delegates are aware via the instrument of delegation or other means of each of the relevant restrictions or qualifications that operate.

Agencies are advised to revise regularly all delegations to APS employees (under the PS Act and other legislation), to ensure that they identify properly the persons to whom the powers and functions have been delegated, the section of the legislation that permits the delegation and the powers and functions being delegated.

Where legislation confers on a person holding a specified office the power to delegate a power vested in them as the holder of that office, the courts have held that a change in the person holding that office will not result in an instrument of delegation executed by the former occupant of that office ceasing to have effect. Accordingly, instruments of delegation made by the Commissioner, the MPC or an Agency Head will continue in effect where there is a change in the occupant of the particular office until they are otherwise changed or revoked.

Generally speaking it is good practice for a new office holder to review and if necessary re-issue delegations in relation to powers, functions or duties delegated by a previous office holder.

Note that under section 77 of the PS Act, Agency Heads are able to create positions in the agency and nominate an APS employee to occupy a position in the agency. This provision was included in the legislation to assist in providing certainty in relation to matters such as delegations, especially in larger agencies where the establishment of position numbers might help in this regard. A delegation may be made to anyone for the time being holding, occupying or performing the duties of such a position (see Appendix A for further information).

3. Authorisation and delegation of powers and functions

This section provides some detail in respect of authorisation and delegation of powers and functions under the PS Act by the Prime Minister, the Public Service Minister the Commissioner, the MPC and Agency Heads.

More broadly however, when considering the delegation of powers under the PS Act and subordinate legislation, it is important to initially consider which powers or functions it is appropriate to delegate.

While some powers or functions may be delegable, careful consideration should be given as to whether it is more appropriate for an Agency Head to retain responsibility for particular functions, particularly in light of the power for a delegate to subdelegate.

The new power in section 41B of the PS Act which allows an Agency Head to ask the Commissioner to inquire into APS employee misconduct might be a good example of such a provision. An alternative to delegation in this circumstance could be for an Agency Head to authorise a senior employee in the Agency to request the Commissioner to conduct an inquiry into an alleged breach of the Code of Conduct by an employee in the Agency in a particular case where necessary, rather than having a broader delegation in place. The decision of the person 'authorised' will be a decision made for an on behalf of the Agency Head making the Agency Head the official who remains responsible for the decision.

Other examples of where it might be appropriate for Agency Heads to exercise powers personally include:

  • establishing written procedures for determining breaches of the Code of Conduct and sanctions where a breach has been found (subsection 15(3) of the PS Act)
  • establishing written procedures for enabling an employee to make a whistleblower report and for the Agency Head to deal with a whistleblower report (subsection 16(2) of the PS Act)
  • giving a report to the Agency Minister, for presentation to the Parliament on the Agency's activities during the year (section 63 for Secretaries and section 70 for Executive Agency Heads).

Some provisions in the PS Act and subordinate legislation are personal responsibilities of an Agency Head and cannot be delegated. Examples include the requirements for an Agency Head to:

  • uphold and promote the APS Values and APS Employment Principles (section 12 of the PS Act)
  • comply with the Classification Rules (subsection 23(3) of the PS Act)
  • integrate the APS Values into the agency's culture (clause 1.7 of the Directions).

Note that section 20 of the PS Act is considered to be an expression of the general powers and responsibilities that an employer has, many of which flow from the common law, and as such would not normally be included in agency delegations. A person can be authorised to exercise some or all of the responsibilities of an employer implicit in section 20.

In addition to these more general observations about the delegability of powers and functions, it is important to note that certain requirements or elements of the subordinate legislation form part of, or operate to regulate the exercise of, the primary power in the PS Act and are not therefore separately delegable – this means that the delegation of the principal power in the PS Act is subject to the relevant provisions in the subordinate legislation.

This particularly applies to a number of powers in the Directions relating to engagement, movement and promotion. As mentioned above, a prudent approach would be to ensure that the person exercising the power is aware via the instrument of delegation or other means of each of the relevant restrictions or qualifications that operate, and where there is any doubt at all as to whether a power is a separate delegable power ensure a delegate holds the related powers or functions under the PS Act, and under the Commissioner's Directions. If that approach is taken, it is unlikely that the exercise of a power or function would be successfully challenged on the basis of a lack of authority by the decision-maker to exercise the power. See Appendix D for more details.

Following are some examples of related powers where there is a qualification or restriction on the exercise of another power in the PS Act and are not separately delegable.

  • Under subsection 22(1), an Agency Head has the power to engage a person as an APS employee, while subsection 22(8) provides that an Agency Head must not engage, as an APS employee, a person who is not an Australian citizen unless the Agency Head considers it appropriate to do so. This latter provision is not considered to be a separate delegable power as it imposes a restriction on the power in subsection 22(1). However, an Agency Head could direct a delegate under subsection 78(11) of the PS Act to consult with the Agency Head before engaging a person who is not an Australian citizen.
  • In addition, there are a number of provisions under the Directions (e.g. clauses 2.17(2), 2.22, but see Appendix D for further details) which are relevant to the exercise of power under section 22 because they provide the details of how the Agency Head or delegate is to exercise the section 22 power.

Finally, an area which has caused some uncertainty in the past is the source of power for imposing sanctions under subsection 15(1) of the PS Act. While the primary source of power is subsection 15(1) itself, where a sanction is to be imposed which interacts with another power, it will be prudent for the delegate also to be delegated powers under that other power. So, for example, a subsection 15(1) sanction delegate who may need to consider a sanction of reduction in classification or termination of employment should also, out of caution, have a delegation under the related provisions of the PS Act (subsection 23(4) and section 29) and the Classification Rules.

One appropriate way to deal with this circumstance is to phrase the delegation as follows:

I (Agency Head name, title, agency), acting under my powers of delegation under the Public Service Act 1999 (the PS Act) and the Public Service Classification Rules 2000 (the Classification Rules), delegate to (name), my powers under the PS Act and Classification Rules to impose on an APS employee in (the agency) who is found to have breached the APS Code of Conduct, the sanctions set out in section 15((1) of the PS Act.

3.1 The Prime Minister's and Public Service Minister's powers

The PS Act provides for a number of powers or functions to be exercised by the Prime Minister and the Public Service Minister (i.e. the Minister who administers the PS Act).

Section 78 of the PS Act, together with section 34AAB of the AI Act, enables the Prime Minister and/or the Public Service Minister to delegate, or authorise other Ministers to perform on his or her behalf, the powers and functions he or she has under the PS Act (other than the exceptional circumstances power in subsection 24(3) for the Public Service Minister to determine terms and conditions of employment applying to APS employees).

In addition, the Public Service Minister may delegate his/her powers under section 73 of the PS Act to a 'senior official' – defined in subsection 78(12) as:

  • a person who holds any office or appointment under an Act; or
  • a Senior Executive Service (SES) employee or acting SES employee.

The Prime Minister has delegated to each Portfolio Minister the power under section 62 of the PS Act to appoint a person to act as the Secretary of a Department, where the vacancy is for a period of not more than two months; or during any period of not more than two months when the Secretary is absent from duty or from Australia, or is, for any reason, unable to perform the duties of the office. In these circumstances, the period of the acting appointment must not exceed the period of the vacancy.

In relation to the Public Service Minister's powers, the power under section 73 of the PS Act to make payments to persons in special circumstances has been delegated to Agency Heads and must be exercised personally by the Agency Head (i.e. it is not able to be further delegated within the agency). Further advice on section 73 payments is available on the Commission's website at http://www.apsc.gov.au/aps-employment-policy-and-advice.

3.2 The Australian Public Service Commissioner's powers

While the Commissioner may delegate the powers or functions conferred on him or her by the PS Act, the Regulations, the Directions and the Classification Rules, there has been no delegation of these powers to Agency Heads.

3.3 The Merit Protection Commissioner's powers

The MPC may delegate the powers or functions conferred on him or her by the PS Act and the Regulations. However, there has been no delegation of these powers to Agency Heads.

3.4 Agency Heads

Powers and functions conferred on Agency Heads by the PS Act and subordinate legislation are listed at Appendices B to E.

3.4.1 Delegation of Agency Head powers and functions under the Public Service Act 1999

Under subsection 78(7) of the PS Act, an Agency Head may, in writing, delegate to another person any of the Agency Head's powers or functions under the PS Act (other than the power to delegate).

Under subsection 78(8) of the PS Act, an Agency Head cannot delegate powers or functions to an 'outsider' without the prior written consent of the Commissioner. This requirement for the Commissioner's prior written consent also extends to the subdelegation of Agency Head powers and functions to an outsider under section 78(9) of the PS Act.

Subsection 78(11) of the PS Act provides that a person exercising powers or functions under a delegation made under section 78 must comply with any directions of the person who delegated the power or function.

Information about the process of seeking the Commissioner's consent to the delegation of powers and functions to an 'outsider' is detailed at Part 4 below.

A list of delegable powers under the PS Act is at Appendix B.

3.4.2 Delegation of Agency Head powers and functions under the Public Service Regulations 1999

The Regulations confer powers and functions on an Agency Head. Regulation 9.3 provides for the delegation of those powers and functions.

Under subregulation 9.3(3), an Agency Head may, in writing, delegate to a person any of the Agency Head's powers or functions under the Regulations, other than the power to delegate. Under subregulation 9.3(4), however, an Agency Head cannot delegate the powers and functions to an 'outsider' without the prior written consent of the Commissioner.

Subregulation 9.3(8) provides that a person exercising powers or functions under a delegation made under regulation 9.3 must comply with any directions of the person who delegated the power or function.

A list of delegable powers under the Regulations is at Appendix C.

3.4.3 Delegation of Agency Head powers and functions under the Australian Public Service Commissioner's Directions 2013

The Directions confer powers and functions on an Agency Head. Clause 8.2 of the Directions provides for the delegation of those powers and functions.

Under subclause 8.2(1) of the Directions, an Agency Head may, in writing, delegate to a person any of the Agency Head's powers or functions under the Directions, other than the power to delegate. Under subclause 8.2(2) of the Directions, however, an Agency Head cannot delegate powers and functions to an 'outsider' without prior written consent of the Commissioner.

Subclause 8.2(6) provides that a person exercising powers or functions under a delegation made under clause 8.2 must comply with any directions of the person who delegated the power or function.

A list of delegable powers under the Directions is at Appendix D.

3.4.4 Delegation of Agency Head powers and functions under the Public Service Classification Rules 2000

The Classification Rules confer powers and functions on an Agency Head. Classification Rule 13 provides for the delegation of those powers and functions.

Under Classification Rule 13(1) an Agency Head may, in writing, delegate to a person any of the Agency Head's powers or functions under the Classification Rules, other than the power to delegate. Under Classification Rule 13(2), however, an Agency Head cannot delegate powers and functions to an 'outsider' without prior written consent of the Commissioner.

Classification Rule 13(6) provides that a person exercising powers or functions under a delegation made under Rule 13 must comply with any directions of the person who delegated the power or function.

A list of delegable powers under the Classification Rules is at Appendix E.

3.4.5 Delegation and authorisation of powers and functions under enterprise agreements, awards and section 24 determinations

The delegation power in section 78 of the PS Act relates only to the delegation of powers and functions under the PS Act (and the relevant provisions in the PS Act subordinate legislation only relate to powers under the specific subordinate legislation).

If it is desired to delegate powers and functions relating to matters set out in industrial agreements, awards and section 24 determinations, it is, therefore, necessary to rely on an appropriate head of power in the relevant instrument.

The APS Award does not include a power to make delegations but rather relies on the use of authorisations. Clause 3, Definitions, states that an 'Agency Head' is as defined in the PS Act, or (except where the context otherwise requires) is a person authorised to exercise the relevant powers of an Agency Head for the purpose concerned". To the extent that the APS Award is relevant, agencies need to decide whether it is sufficient to rely on implicit authorisations (e.g. arising out of people's roles and internal management guidelines) or if it would be preferable to put in place explicit authorisations.

Agencies need to consider these issues when drafting their enterprise agreements or determinations under section 24 of the PS Act. Specifically, they need to consider on whom a power should be conferred and for what purposes, and whether they wish to put in place a system of formal delegations or rely on implicit or express authorisations.

The appropriate approach will vary from one situation to another taking account of such factors as:

  • the work involved in maintaining detailed formal delegations
  • the difference between authorisations and delegations
  • whether particular decisions are likely to be challenged on legal grounds, noting that disputes about industrial agreements will usually be handled through industrial rather than legal mechanisms.

Possible approaches may involve:

  • including an express delegation power in the enterprise agreement or section 24 determination
  • defining the Agency Head to include persons authorised by the Agency Head; or
  • vesting the discretion in all people in a certain job description or at a certain classification level.

4. Delegations and sub-delegations to an 'outsider' by an Agency Head

The prior written consent of the Commissioner is required before a power or function under the PS Act or subordinate legislation is delegated to an 'outsider'. Applications for such consent are considered by the Commissioner on a case-by-case basis.

Under subsection 78(8) of the PS Act, and equivalent provisions in the Regulations and Commissioner's Directions, an outsider means a person who is not:

  • an APS employee; or
  • a person appointed to an office by the Governor-General, or by a Minister, under a law of the Commonwealth.

Note that some members of the Australian Defence Forces (ADF) may be 'outsiders' for the purposes of this provision, although this is not the case for ADF officers appointed by the Governor-General under regulation 15 of the Defence (Personnel) Regulations 2002 (i.e. a person appointed as ADF officer under this provision is not considered to be an 'outsider'.

Where it is proposed to delegate powers under the PS Act or subordinate legislation to an ADF member, agencies will need to establish how the ADF member was appointed in order to determine whether the prior written consent of the Commissioner is necessary. Agencies may need to seek their own legal advice on this matter.

Agencies seeking approval to delegate powers and functions to outsiders should provide the following details when seeking the Commissioner's consent:

  • the nature of the relationship of the outsider with the agency, (e.g. consultant, participant in exchange program, or person employed under other legislation)
  • the legislation or authority under which the person is engaged
  • the duties to be performed
  • the period for which the consent is required
  • whether supervision of APS employees is included in the duties
  • whether the arrangement (e.g. contract) requires the proposed delegate to have appropriate regard to the APS Values, Employment Principles, Code of Conduct and other relevant APS policy
  • the qualifications and experience of the outsider
  • any additional information to explain the need for the proposed delegation to an outsider.

Agencies should note that consent to a subdelegation to an outsider will be authorised only in exceptional circumstances.

Note that this requirement to seek the Commissioner's approval to delegate powers to an 'outsider' only applies to powers set out under the PS Act and subordinate legislation. It does not apply to powers contained in other legislation or in an agency's enterprise agreement.

Appendix A: Relevant provisions of the Acts Interpretation Act 1901

The Acts Interpretation Act 1901 (the AI Act) contains provisions that are relevant to delegations, the effect of delegation and the exercise of certain powers and functions by a delegate.

The AI Act makes it clear that, unless a contrary intention appears in the relevant legislation, an express power of delegation does not have to be exercised in favour of a nominated individual (section 34AA). It may be exercised by reference to a person or persons from time to time holding, occupying or performing the duties of a specified position even if the position doesn't come into existence until after the delegation is given.

The AI Act sets out a number of general principles related to the exercise of an express power of delegation. Section 34AB provides that where an Act confers power on a person or body (the authority) to delegate a power or function or duty:

  • the delegation may be made either generally or as otherwise provided by the instrument of delegation,
  • the powers that may be delegated do not include that power to delegate,
  • a function 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,
  • a delegation by the authority does not prevent the performance or exercise of a function or power by the authority, and
  • if the authority is not a person, section 34A applies as if it were.

Subsection 34AB(2) makes it clear that a delegation expressed to extend to all the powers, functions or duties of the delegator under a given Act or part of an Act extend to a power function or duty included in that Act that has come into existence after the delegation is made. Subsection 34AB(3) provides that when an Act amends the scope of a power, function or duty that has been delegated, the delegation is taken to include the altered power, function or duty.

Of particular note, section 34A of the AI Act provides effectively that delegates may exercise the delegated power, function or duty by applying his or her own opinion, belief or state of mind. Generally speaking, a delegator cannot direct the delegate in the exercise of the delegator's discretion or make the exercise of the power conditional on certain events or actions. This general rule is subject to any legislative provision which specifically provides that a delegate is subject to the directions or conditions imposed by the delegator—this is the case with the PS Act and subordinate legislation. Such directions must be general in nature rather than concerned with the exercise of the delegation in relation to a particular instance.

Appendix B: Agency Head powers and functions under the Public Service Act 1999

This list comprises powers or functions that may be considered for delegation under section 78 of the PS Act. It is a matter for Agency Heads to decide what powers and functions are delegated to employees within their Agency. See also Parts 2 and 3 of this advice for further information on issues to consider when delegating powers and functions and when preparing instruments of delegation.

SectionPower or function

Notes

  1. Certain provisions of the PS Act are considered to be personal responsibilities of Agency Heads and cannot be delegated, including the following:
    • section 12 to uphold and promote the APS Values and APS Employment Principles.
    • subsection 23(3) to comply with the Classification Rules.
  2. Section 20 of the PS Act is considered to be an expression of the general powers and responsibilities that an employer has, many of which flow from the common law, and as such would not normally be included in agency delegations. A person can be authorised to exercise some or all of the responsibilities of an employer implicit in section 20.
  3. Section 30 of the PS Act, which provides that an Agency Head may accept a notice of retirement from an APS employee is not considered to be a delegable power. However, an Agency Head could authorise persons to accept a notice of retirement on the Agency Head's behalf.
  4. The requirement under section 39 of the PS Act for an Agency Head to comply with any written direction by the Agency Minister directing the Agency Head to engage a particular person as an APS employee so that the person can become a Head of Mission, or assigning particular duties to an APS employee who has been appointed as a Head of Mission, is not considered to be a delegable power. Rather it is a restriction on an Agency Head's general power to engage a person as an APS employee and assign particular duties to them.
Subsection 15(1)

An Agency Head may impose sanctions for breaches of the Code of Conduct.

Note that where a sanction is to be imposed which interacts with another power (e.g. reduction in classification under subsection 23(4) and the Classification Rules or termination under section 29), it will be prudent for the delegate also to be delegated powers under other related powers.

Subsection 15(3)

An Agency Head must establish written procedures for determining breaches of the Code of Conduct and sanctions to be imposed where a breach is found.

Note that while the power under subsection 15(3) is delegable, it may be appropriate for Agency Heads themselves to make these procedures.

Subsection 15(7)

An Agency Head must ensure that the procedures established under subsection 15(3) are publicly available.

Subsection 16(2)

An Agency Head must establish procedures for allowing an APS employee to make a whistleblower report of a breach (or an alleged breach) of the Code of Conduct to the Agency Head and procedures for dealing with such a report.

Note that while the power under subsection 16(2) is delegable, it may be appropriate for Agency Heads themselves to make these procedures.

Section 18

An Agency Head must establish a workplace diversity program.

Subsection 22(1)

An Agency Head may engage persons as APS employees.

Note that under subsection 22(8) of the PS Act, an Agency Head must not engage, as an APS employee, a person who is not an Australian citizen, unless the Agency Head considers it appropriate to do so. This power imposes a restriction on the power in s 22(1) and is not a separate delegable power. However, an Agency Head could direct a delegate to consult with the Agency Head before engaging a non-citizen.

Subsection 23(4)

An Agency Head may reduce the classification of an APS employee, without the employee's consent, only in prescribed circumstances (but see note in relation to s.15(1) above).

Subsection 24(1)

An Agency Head may determine the terms and conditions of employment applying to APS employees in the Agency.

Section 25

An Agency Head may from time to time determine the duties of an APS employee in the Agency, and the place or places at which the duties are to be performed.

Section 26

An Agency Head may enter into an agreement in writing with an APS employee for the employee to move to the Agency Head's Agency from another Agency.

Section 27

An Agency Head may notify the Commissioner in writing that an employee is excess to the requirements of the Agency.

Section 29

An Agency Head may at any time, by notice in writing, terminate the employment of an APS employee (but see note in relation to s.15(1) above).

Section 31

An Agency Head may give notice to an APS employee in relation to additional non-Commonwealth remuneration.

Section 37

An Agency Head may give a notice in writing to an SES employee concerning the payment of a specified amount if the employee retires.

Subsection 41B(1)

An Agency Head may request the Commissioner to inquire into APS employee misconduct (but see note below s.41B(9)).

Subsection 41B(9)

An Agency Head may request the Commissioner to recommend sanctions where the Commissioner is also requested to conduct an inquiry under subsection 41B(1).

Note that while the powers under ss.41B(1) and 41B(9) are delegable, it may be appropriate for Agency Heads themselves to make these requests. As an alternative, an Agency Head could consider authorising another person to make such a request where necessary.

Section 44

An Agency Head must provide the Commissioner with whatever information is required for the purposes of the Commissioner's report on the state of the APS.

Subsection 50A(1)

An Agency Head may request the Merit Protection Commissioner to inquire into and determine whether an APS employee, or a former APS employee, has breached the Code of Conduct.

Section 63

After the end of each financial year, the Secretary of a Department must give a report to the Agency Minister, for presentation to Parliament, on the Department's activities during the year.

Note that while this power is delegable, it may be appropriate for Secretaries themselves to give the report to the Minister.

Section 70

After the end of each financial year, the Head of an Executive Agency must give a report to the Agency Minister, for presentation to Parliament, on the Agency's activities during the year.

Note that while this power is delegable, it may be appropriate for Agency Heads themselves to give the report to the Minister.

Section 74

An Agency Head may engage persons overseas to perform duties overseas as employees.

Section 77

An Agency Head may create positions and nominate APS employees to occupy such positions.

Appendix C: Agency Head powers and functions under the Public Service Regulations 1999

This list comprises powers or functions that may be considered for delegation under regulation 9.3. It is a matter for Agency Heads to decide what powers and functions are delegated to employees within their Agency. See also Parts 2 and 3 of this advice for further information on issues to consider when delegating powers and functions and when preparing instruments of delegation.

RegulationPower or function

Notes

  1. Regulation 2.4, sets out the basic requirements for Agency Heads dealing with whistleblower reports. Regulation 2.7 provides circumstances for declining or discontinuing an inquiry - the whistleblower inquiry and associated considerations are conducted under agency procedures so these powers are not separately delegable.
  2. The requirement in subregulation 4.5(3) for an Agency Head who is appointed to act on behalf of an ISAC to follow any instructions issued by the Merit Protection Commissioner is a restriction on the Agency Head and not a delegable power.
Regulations 3.1 & 3.2

An Agency Head may direct an APS employee to attend a medical examination in a range of circumstances and/or to give the Agency Head a medical report of the examination within a specified timeframe.

Regulation 3.3

An Agency Head may approve a scheme for persons engaged for a specified term, or for the duration of a specified task, in the Agency to gain skills and experience for the purpose of assisting them to participate in the workforce.

Subparagraph 3.5(6)(a)(ii)

An Agency Head may enter into an agreement with a State or Territory, or an authority of a State or Territory, to engage a person as a non-ongoing APS employee for a specified term.

Note: other powers in regulation 3.5 are not separately delegable as they relate to the engagement power under section 22 of the PS Act.

Regulation 3.10

In certain circumstances an Agency Head may suspend an APS employee employed in the Agency from duties.

Regulation 4.2

An Agency Head may request the establishment of an Independent Selection Advisory Committee (ISAC).

Regulation 4.3

An Agency Head must nominate a person to an ISAC.

Regulation 5.11

An Agency Head must nominate an APS employee to a Promotion Review Committee (PRC).

Regulation 5.17

An Agency Head must provide to a PRC information and/or documents relevant to a review in the way, and at or within the time, stated in the written notice of request.

Regulation 5.25

An Agency Head, with the Merit Protection Commissioner's (MPC) agreement, may refer an application for review of a reviewable action to the MPC. An Agency Head must tell the employee of this decision in writing.

Regulation 5.26

The person who would have conducted the review must tell the employee in writing, certain things in relation to a notice that action is not reviewable.

Note: this operates where the Agency Head conducted the review.

Regulation 5.27

An Agency Head must review the action and attempt to resolve the employee's concerns about the action unless the Agency Head refers the application to the MPC or considers that the employee is not entitled to review.

The Agency Head … may:

  • confirm the action; or
  • vary the action; or
  • set the action aside and substitute a new action.

The Agency Head must tell the employee in writing of:

  1. any decision made on the application; and
  2. the reasons for the decision; and
  3. any action to be taken as result of the review; and
  4. applicant's right to apply to the MPC under r.5.29 for secondary review of the action.

Regulation 5.30

An Agency Head must give the application and documents relating to the primary review of action to the MPC within 14 days after receiving an application for a secondary review. The Agency Head must also give the affected employee a copy of the documentation that is passed to the MPC.

An Agency Head may confirm the relevant action, vary the action or set the action aside and substitute a new action.

Subregulations 5.32(1) and (2)

An Agency Head must as soon as possible consider and make decisions about recommendations received from the MPC regarding review of actions.

Subregulation 5.32(4)

The Agency Head must write to the employee and the MPC, informing them of his/her decision and the reasons for it.

Note that subregulation 5.32(2A) is not delegable as it is not a function or power.

Regulation 5.35

An Agency Head must provide information or documents relevant to a review to a person or Committee carrying out a review in the way, and at or within the time, stated in the written notice of request.

Regulation 7.2F

Agency Head required to give the MPC stated information in relation to the conduct of a review by a former employee.

Regulation 8.1

In relation to administrative re-arrangements and re-organisations, Agency Heads must consult with affected APS employees either before or after the move, prior to varying certain conditions of employment.

Regulation 8.2

In relation to administrative re-arrangements and re-organisations, Agency Heads must consult with affected non-APS employees before or after engagement, before varying remuneration and certain conditions of employment.

Regulation 9.2

In specified circumstances an Agency Head may use and disclose personal information that is in their possession or under their control.

Appendix D: Agency Head powers and functions under the Australian Public Service Commissioner's Directions 2013

This list comprises powers or functions that may be considered for delegation under Clause 8.2 of the Directions. It is a matter for Agency Heads to decide what powers and functions are delegated within their Agency. See also Parts 2 and 3 of this advice for further information on issues to consider when delegating powers and functions and when preparing instruments of delegation.

As noted in Part 3 of this advice, many of the powers in Chapter 2 of the Directions in particular are linked to specific powers in the PS Act, including the powers to engage (section 22), assign duties (section 25) or move an employee from another agency (section 26).

While these powers in the Directions may not be separately delegable, a prudent approach would be to ensure that the person exercising the primary power under the PS Act clearly holds any related power or function under the Commissioner's Directions. The delegation instrument should identify all the relevant powers and functions which are to be delegated, including the relevant powers in the Directions. If that approach is taken, it is unlikely that the exercise of a power or function would be successfully challenged on the basis of a lack of authority by the decision-maker to exercise the power.

Relevant powers in the Directions are linked to the following sections of the PS Act:

  • Section 22 – clauses 2.12(1), 2.12(2), 2.12(4), 2.14, 2.15, 2.16, 2.17(2), 2.17A, 2.18(a), 2.22, 2.23, 7.1(6)
  • Section 25 – clauses 2.24, 2.25, 2.31(3)(b)
  • Section 26 – clauses 2.27, 6.8
  • Section 74 – clause 7.1(6)
DirectionPower or function

Notes

  1. Certain provisions of the Directions are considered to be personal responsibilities of Agency Heads and cannot be delegated, including the following:
    • Clause 1.7 – Agency Head to integrate the Values into the agency's culture
    • Clause 2.7 – Agency Head to uphold APS Employment Principle10A(1)(c)
    • Clause 4.1 – Agency Head to do a range of things to support effective performance by employees.
  2. There are various provisions of the Directions which require an Agency Head to 'put in place measures' to ensure that certain things are done – see as follows:
    • Clause 3.1 – an Agency Head must put in place measures in the Agency directed at ensuring that all relevant anti-discrimination laws are complied with.
    • Clause 3.2 – an Agency Head must put in place measures in the Agency directed at ensuring that:
    1. the diversity of APS employees is recognised, fostered and made best use of within the workplace, taking into account the organisational and business goals of the Agency and the skills required to perform the relevant duties; and
    2. APS employees are helped to balance their work, family and other caring responsibilities effectively.
    • Clause 5.1 - an Agency Head must put in place measures in the Agency directed at ensuring that the Agency complies with all applicable work health and safety legislation.
    • Clause 7.6 Agency Head must ensure that measures are put in place for the collection of certain information from employees of the Agency.

    While these provisions are functions of the Agency Head and therefore delegable, it is not necessary to have delegations in place as an Agency Head could satisfy the requirement by ensuring there are staff and/or programs in place in the agency whose responsibilities include implementing particular measures. However, this will require the Agency Head to identify the measures (or for example, to have agreed to measures proposed in a brief). If such an approach is adopted, it would be unlikely that the authority of staff whose duties include implementing them would be challenged if there were no delegations in place.

    However, if the Agency Head merely instructed another person to identify measures and put them in place, this would be a delegation of power and an instrument of delegation would be required.

  3. Clause 7.3 is not delegable as it is a restriction on the power in section 37 of the PS Act.
  4. Clause 4.2 (Agency Head must have regard to relevant information issued by the Commissioner) is not separately delegable as it relates to the power in section 15(3) of the PS Act.
Clauses 2.9(1) and (2)

Requirement to notify a vacancy

Note: While clauses 2.9(1) and (2) do not specifically indicate an Agency Head power it is implied by the language of clauses 2.15 and 2.16 and should be considered as delegable.

Note clauses 2.15, 2.16, 2.17 and 2.17A are linked to clause 2.9 by qualifying its operation and are not separately delegable.

Subclause 2.9(3)Agency Head may seek agreement of the Commissioner to limit a non-SES job advertisement to APS employees
Subclause 2.12(3)Agency Head to ensure that vacancies to which this clause applies (specified term or task employment of 12 months or less or irregular or intermittent employment) are notified to the community
Clause 2.13Agency Head may ask the Commissioner to authorise the engagement of a non-ongoing APS employee as an ongoing APS employee without complying with Part 2.1 in certain specific circumstances.
Subclause 2.18(b) An Agency Head may engage a person as a non-ongoing APS employee for a specified term without complying with Part 2.1 if:
  1. the person is an employee of a State or Territory, or of an authority of a State or Territory; and
  2. the Agency Head has entered into an agreement with the State or Territory, or the authority of the State or Territory, to engage the person as a non-ongoing employee for a specified term

Note: the power to enter into an agreement is delegable but the power to engage is not separately delegable as it relates to the power to engage under s 22.

Clause 2.20Agency Head may request the Commissioner to authorise the promotion of an ongoing employee without complying with Part 2.1 in certain prescribed circumstances where the employee was formerly appointed to a statutory office.
Subclause 2.29(1)

Agency Head must notify certain employment decisions in the Public Service Gazette.

Note: powers under subclauses 2.29(4) and 2.29(5) for an Agency Head not to include the employee's name (after consultation with the Commissioner) in a notification required under subclause 2.29(1) because of the employee's personal or work-related circumstances is not separately delegable as it falls within the power under subclause 2.29(1).

Clause 2.30

Agency Head must notify certain cancellation decisions in the Public Service Gazette.

Paragraph 2.31(3)(c)

Original Agency Head to agree to the date of effect of a promotion decision if the employee is moving to another agency.

Note that the power under paragraph 2.31(3)(b) – gaining Agency Head agreement to the date of effect of a promotion – is not separately delegable as it is part of the section 25 power.

Clause 3.4Agency Head must publish workplace diversity program on the agency's Website.
Subclause 3.5(1) An Agency Head must:
  1. develop performance indicators to evaluate the effectiveness and outcomes of the Agency's workplace diversity program; and
  2. evaluate and report on the effectiveness and outcomes of the program annually.
Subclause 3.5(2) An Agency Head must give the Commissioner the information the Commissioner requires to enable the Commissioner to:
  1. evaluate and make an assessment of the effectiveness of Agencies' workplace diversity programs; and
  2. make the assessment for the purpose of the Commissioner's report under section 44 of the Act.
Clause 3.6Agency Head must review the Agency's workplace diversity program every 4 years.
Subclause 7.1(7)Agency Head must either obtain the Commissioner's approval, or consult with the Commissioner, in certain circumstances before engaging a redundancy benefit recipient as an ongoing or non-ongoing APS employee
Subclause 7.4(1)An Agency Head must grant leave without pay to an ongoing APS employee who applies for the leave to undertake or continue employment under the Governor-General Act 1974 or the Members of Parliament (Staff) Act 1984.
Subclause 7.4(2)Where employee granted leave under subclause 7.4(1) advises that he/she wishes to return to the agency, Agency Head must arrange this as soon as practicable and employ the person at their former classification or if necessary an equivalent classification.
Subclause 7.5(3)Agency Head may grant an extension of unexpired leave without pay that was approved under the provisions of the subclause 2.1(1) of the Prime Minister's Public Service Directions 1999, as in force prior to 19 October 2005 to continue employment in a statutory office.
Subclause 7.5(4)Where employee granted leave without pay as mentioned in this clause 7.5 advises that he/she wishes to return to the agency, an Agency Head must arrange this as soon as practicable and employ the person at their former classification or if necessary an equivalent classification.

Appendix E: Agency Head powers and functions under the Public Service Classification Rules 2000

This list comprises powers or functions that may be considered for delegation under Rule 13 of the Public Service Classification Rules 2000. It is a matter for Agency Heads to decide what powers and functions are delegated to employees within their Agency. See also Parts 2 and 3 for further information on issues to consider when delegating powers and functions and when preparing instruments of delegation.

RulePower or function
Rule 6An Agency Head must allocate an approved classification to each APS employee in the Agency and, subject to Rule 7, that classification must be based on the on the group of duties that are determined by the Agency Head to be the duties to be performed by the employee in the Agency.
Rule 7(3) Where an ongoing employee moves to an Agency Head's Agency in accordance with an agreement entered into under section 26 of the Act and the move is not an ongoing move, the Agency Head must allocate to the employee:
  1. the approved classification that was allocated to the employee immediately before moving to the Agency; or
  2. another approved classification that is in the same group as the classification mentioned in paragraph (a).
Rule 9(1)

An Agency Head must allocate an approved classification to each group of duties to be performed in the Agency.

Note that the powers under Rules 9(3) and 9(4) are not separately delegable

Rule 10(1)An Agency Head must issue, in writing, work level standards describing the work requirements for each classification that is not an SES classification applying to a group of duties to be performed in the Agency.
Rule 11(1)If an APS employee who is engaged at a training classification satisfactorily finishes each training requirement for the training classification, the Agency Head must allocate to the employee a classification mentioned in column 3 of Schedule 2 that relates to the employee's training classification.

[1] In terms of subordinate legislation made under the PS Act, this guide currently refers to the Public Service Classification Rules 2000. It is likely that these Rules will be remade in 2013 and once this occurs, any necessary amendment will be made to the relevant provisions of this document.

[2] The 'Carltona Principle' takes its name from the case most often relied on as authority for the proposition that a person may authorise another to exercise a power for and on his or her behalf—'Carltona Ltd v Commissioners of Works [1943] 2 All ER 560', which has been expressly endorsed by Courts in Australia. AGS Legal Briefing No.74 dated 14 December 2004 provides further information on delegations and authorisations including the Carltona principle.

[3] Care should be taken in defining the duties in the instrument so that the delegate can be distinguished, if necessary, from non-delegates performing similar duties.