Delegations under the Public Service Act 1999 and subordinate legislation

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Overview

The management of delegations is crucial to the legitimacy of employment decisions and actions undertaken in the Australian Public Service (APS).

The following sections provide general information about the delegation of powers and functions under the Public Service Act 1999 (PS Act) and subordinate legislation—the Public Service Regulations 1999 (PS Regulations), the Public Service Classification Rules 2000 (the Classification Rules) and the Australian Public Service Commissioner's Directions 2022(the Directions).

This information is not legal advice and agencies are encouraged to seek legal advice if there is uncertainty about a delegation issue.

This guidance does not 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)
  • delegation provisions from agencies’ enterprise agreements or
  • delegation provisions from agencies’ enabling legislation.

The PS Act and its subordinate legislation (APS legislation) has specific provisions that allow the person who the legislation has provided powers and functions (the delegator), to delegate those powers and functions to another person (the delegate).

There are limits on who an APS Agency Head may delegate a power or function to under APS legislation. Agency Heads may not delegate to an outsider, as defined in section 78(8) of the PS Act, without prior written consent of the Australian Public Service Commissioner. For further information, see theAgency Heads powers and delegation to an outsider section.

Agencies should ensure that:

  • delegations are within the scope permitted by the legislative framework
  • instruments of delegation are established and regularly reviewed for appropriateness and accuracy
  • 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
  • appropriate internal audit, review and monitoring is undertaken
  • appropriate records of delegations, including those that have been superseded, are maintained.

Agencies will also find useful information on Australian Government Solicitor's website on Delegations, authorisations and the Carltona principle. This Legal briefing outlines the nature of powers of delegation and authorisation and the legal principles. It provides the APS with useful guidance on administering delegations and authorisations which are crucial to efficient government operations.

Legal advice

Agencies should seek legal advice if there is any uncertainty about a delegation issue.

Agencies should note the obligations under the Legal Services Directions 2017 issued by the Attorney-General’s Department, which require consultation in certain circumstances where an Agency is seeking external legal advice.

Agencies should consult the Australian Public Service Commission (the Commission) before obtaining legal advice 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. Agencies are also required to provide the Commission a copy of the request for advice and the advice obtained, via legal@apsc.gov.au

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