When Parliament creates a statutory power it vests that power in some individual or body who is then able to exercise it. Power can be vested in a person holding an existing office in the Executive Government, for example, the Governor-General, a Minister or the secretary of a department. When Parliament vests power in a person that person is generally required to exercise the power personally. However, the person or body in which Parliament directly vests a power can designate another person to exercise that power where there is:
- an express power to delegate; or
- an implied power to authorise.
2.1 Express power to delegate
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Legislation may provide a statutory procedure for the designation of a person who may exercise a power. This most commonly takes the form of an express power of delegation, but sometimes takes other forms, for example, the appointment of a person as an authorised officer.
Most of the fundamental principles concerning delegation have been codified (see Acts Interpretation Act 1901, section 34AA, section 34AB and section 34A). These principles include:
- the person to whom a power is delegated under an express power of delegation (for example, by the Minister or agency head) must exercise the delegated power by applying his or her own discretion
- the person to whom power is delegated acts in his or her own legal capacity, not as an agent for the delegator
- a person in whom a power is vested may, under an express power of delegation, delegate part of that power
- generally, 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 the person to choose which other persons may exercise the power
- the delegator can still exercise a power which has been delegated
- some powers are not able to be delegated because, for example, there is an express exception to the delegation power or because Parliament intended the power to be exercised personally
- the power to revoke or change a delegation is exercised in the same manner as the power to make the delegation
- legislation that confers an express power of delegation on a person usually requires that power to be exercised in writing by making a written instrument
- an express power of delegation does not have to be exercised in favour of a nominated individual but may be exercised by reference to a person from time to time holding a specified office or position, even if the office or position does not come into existence until after the delegation is given, provided that the delegate can be identified with sufficient certainty
- a delegation does not cease to have effect when the person who gives the delegation ceases to hold office or
- as a delegate literally acts in his or her own name, a delegate signs documents in his or her own name as a delegate of the delegator.
For more information:
2.2 Implied power to authorise
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A person in whom a statutory power is vested may, in some circumstances, be able to rely on an implied power to authorise an official to exercise the statutory power on the person’s behalf.
Fundamental principles relating to the power of a person to authorise include:
- a person authorised to act for another does so as the agent or alter ego of the person in whom the power is vested. Therefore the act of the authorised person is, at law, the act of the person in whom the power is vested (unlike the act of a delegate which, at law, is the delegate’s, and the not the delegator’s)
- a person may authorise another to exercise a power for and on his or her behalf (for example, an agency head in whom powers are vested can authorise more junior employees to exercise those powers for and on their behalf)
- a power to authorise cannot be implied if Parliament intends a power be exercised personally
- issues concerning administrative necessity (such as the volume of decision making a department has) may be a factor in determining whether an authorisation can be implied
- the presence or absence of an express power of delegation does not mean a power to authorise cannot be implied;
- the nature of the power (for example, whether the rights of individuals are affected) can be a relevant consideration in determining whether a power to authorise can be implied
- an authorisation, unlike a delegation, ceases to have effect when the person who gives the authorisation ceases to hold office
- a person acting on another’s behalf under an authorisation acts in the name of the holder of the power and as such would execute documents either by affixing a facsimile signature of the holder of the power or by signing for that person. Strictly speaking, it is not necessary for a person acting under an authorisation to include his or her own name but it is good administrative practice to do so.
For more information:
- Australian Government Solicitor, Legal Practice Briefing No 74 (14 December 2004).
Note that this is freely accessible to registered clients at www.ags.gov.au