Delegations under the Public Service Act 1999 and subordinate legislation

Please note - this is an archived publication.

Introduction

The management of delegations is crucial to the legitimacy of employment decisions and actions undertaken in the Australian Public Service (APS). These pages provide information about the delegation of powers and functions under the Public Service Act 1999 (PS Act) and subordinate legislation—the Public Service Regulations 1999 (the Regulations), the Public Service Commissioner's Directions 1999 (the Directions) and the Public Service Classification Rules 2000 (the Classification Rules).

The PS Act confers powers and functions on the Prime Minister, the Public Service Minister, Agency Ministers, the Public Service Commissioner, the Merit Protection Commissioner 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 Act and subordinate legislation do not require an Agency Head to delegate any powers or functions or impose any limits on the powers or functions to be delegated or on the class of potential delegates, other than in relation 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 drafted in accordance with an established agency-wide standard
• both the delegator and delegate are familiar with their responsibilities
• delegates possess the necessary skills and attributes to exercise the delegated powers and functions
• effective performance management and accountability mechanisms are in place
• appropriate internal audit, review and monitoring is undertaken
• delegates receive relevant training
• all delegations are regularly reviewed for appropriateness and accuracy.

1. Legislative Framework

1.1 Powers of delegation

The provisions of the PS Act and subordinate legislation that enable the delegation of powers and functions are:

• Section 78 of the PS Act
• Regulation 9.3
• Clause 7.1A of the Directions
• Clause 7.1 of the Directions
• Classification Rule 13.

(Other legislation relevant to APS employment and containing delegation powers includes the Maternity Leave (Australian Government Employees) Act 1973 and the Long Service Leave (Commonwealth Employees) Act 1976.)

In addition to these formal powers of delegation, which result from an explicit power of delegation and involve formal instruments of delegation, the Courts recognise an implied power to authorise the exercise of certain powers—often referred to as the ‘Carltona Principle’1. Under this principle, a person in whom a statutory power is vested may, in some exceptional circumstances, be able to rely on an implied power to authorise an official 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. 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. This document does not address issues related to this implied power to authorise the exercise of certain powers.

1.2 Administrative law principles governing the exercise of delegations

The delegation of powers and functions and the exercise of delegated 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 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, or
  • there was no evidence or other material to justify the decision.
• 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.

1.3 Act Interpretation Act

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:

• 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.

Of particular note, section 34A of the AI Act provides that delegates must exercise the delegated power by applying his or her own discretion. It also has the effect that the 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 legislation 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 the subordinate legislation.

1.4 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.

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 nominated from time to time to occupy a specified position created under section 77 of the PS Act, 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.2

Where either of the two latter 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.

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 Public Service Commissioner, the Merit Protection Commissioner 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.

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

Under section 78 of the PS Act, regulation 9.3, clause 7.1 of the Directions and Classification Rule 13, an Agency Head may decide to 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 APS employee (the second delegate), as appropriate. The second delegate cannot further delegate that power or function.

The consent of the Public Service Commissioner must be obtained if an Agency Head wishes to delegate, or a delegate wishes to further delegate, a power or function to an outsider (see Part 3 below).

Under section 78 of the PS Act, regulation 9.3, clause 7.1 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, legal advice indicates that 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.

The Senate Standing Committee on the Scrutiny of Bills has expressed concerns about delegations where the powers or functions that may be delegated are broad in scope and variety. While these concerns do not place restrictions on the delegation of powers and functions under the PS Act and subordinate legislation, Agency Heads are encouraged to consider these concerns in exercising their powers of delegation.

2. Authorisation and delegation of powers and functions

The authorisation and delegation of powers and functions under the PS Act by the Prime Minister, the Public Service Commissioner, the Merit Protection Commissioner and Agency Heads are:

2.1 The Prime Minister

The Prime Minister exercises powers and functions under the PS Act in three capacities:

• as Prime Minister
• as Public Service Minister (being the Minister who administers the PS Act)
• as Agency Minister (being the Minister who administers the provision of the PS Act that provides for the appointment of the Public Service Commissioner and the Merit Protection Commissioner).

Section 78 of the PS Act, together with section 18C of the AI Act, enables the Prime Minister to delegate, or authorise other Ministers to perform on his or her behalf, the powers and functions he or she has in each of these capacities.

Of particular interest to agencies, the Prime Minister, as Public Service Minister, may delegate his or her powers under section 23 and section 73 of the PS Act. At the time of publishing the Prime Minister has delegated to:

• Agency Heads, the powers of the Public Service Minister under section 73(1) of the PS Act to authorise the making of payments to persons if it is considered appropriate to do so because of special circumstances that relate to, or arise out of:
• the payee’s employment by the Commonwealth, or
• another person’s employment by the Commonwealth.
• Agency Heads, the power under section 73(2) of the PS Act to authorise the making of any of the following payments:
• one or more payments of an amount or amounts specified in the authorisation (or worked out in accordance with the authorisation)
• periodical payments of an amount specified in the authorisation (or worked out in accordance with the authorisation).

2.2 The Public Service Commissioner

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

2. 3 The Merit Protection Commissioner

Similarly, while the Merit Protection Commissioner may delegate the powers or functions conferred on him or her by the PS Act and the Regulations, there has been no delegation of these powers to Agency Heads.

2.4 Agency Heads

Powers and functions conferred on Agency Heads by the PS Act and subordinate legislation are listed at Appendix A. Agency Heads may also have a number of implied powers under the PS Act and subordinate legislation which have not been identified in the Appendix. This Appendix does not attempt to canvass the merits of delegating any particular power or function.

An agency should obtain separate legal advice on the matter if there is any uncertainty about a delegation issue.

The Legal Services Directions issued by the Attorney-General require that, unless there are special circumstances, Financial Management and Accountability Act 1997 (FMA Act) agencies are required to consult the Australian Public Service Commission before obtaining legal advice, from any source, on the interpretation of the PS Act. In addition, FMA 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.

While Legal Services Directions do not apply to Commonwealth Authorities and Companies Act 1997 agencies, these agencies are encouraged to assist in the same way in relation to requests for advice on the PS Act.

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

Under section 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 section 78(8) of the PS Act, an Agency Head cannot delegate powers or functions to an outsider without the prior written consent of the Public Service Commissioner.

The Commission has obtained legal advice to the effect that the requirement for the Public Service 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.

Information about the process of seeking the Public Service Commissioner’s consent to the delegation of powers and functions to an outsider is detailed at Part 3 below.

2.4.2 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 regulation 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 regulation 9.3(4), however, an Agency Head cannot delegate the powers and functions to an outsider without the prior written consent of the Commissioner (see Part 3 below).

2.4.3 Delegation of Agency Head powers and functions under the Public Service Commissioner’s Directions 1999

The Directions confer powers and functions on an Agency Head. Clause 7.1 of the Directions provides for the delegation of those powers and functions.

Under clause 7.1(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 clause 7.1(2) of the Directions, however, an Agency Head cannot delegate powers and functions to an outsider without prior written consent of the Commissioner (see Part 3 below).

2.4.4 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 (see final paragraphs).

2.4.5 Delegation and authorisation of powers and functions under industrial 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.

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 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 industrial agreements or determinations under section 24 of the PS Act. Specifically, they need to consider to whom they wish to give power 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
• 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 industrial agreement or section 24 determination
• defining the Agency Head to include persons authorised by the Agency Head
• vesting the discretion in all people in a certain job description or at a certain classification level.

3. Delegations and subdelegations to an outsider by an Agency Head

The prior written consent of the Public Service Commissioner is required before a power or function under the PS Act or subordinate legislation is delegated to an outsider (a person who is not an APS employee). Applications for such consent are considered by the Public Service Commissioner on a case-by-case basis.

Agencies seeking approval to delegate powers and functions to outsiders should provide the following details when seeking the Public Service 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 (contract) requires the proposed delegate to have appropriate regard to the APS Values, 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.

NOTES

• 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.
• 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.

Appendix A

Agency heads powers and functions
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.

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.

Agency head powers and functions under the Public Service Commissioner’s Directions 1999

This list comprises powers or functions that may be considered for delegation under Clause 7.1 of the Directions. It is a matter for Agency Heads to decide what powers and functions are delegated to employees within their Agency.

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.