Section 1: Power to delegate
Power to delegate
APS legislation has specific provisions that enable the delegation of powers and functions. These are:
- Section 78 of the PS Act
- Regulation 9.3 of the PS Regulations
- Section 68 (Commissioner powers) and 69 (Agency Head powers) of the Directions
- Classification Rule 13 of the Classification Rules.
The provisions allow an Agency Head to delegate a power or function to one or more persons, who are referred to in the legislation as the first delegate. The provisions also allow the first delegate to further delegate (subdelegate) that power or function to another person, referred to as the second delegate. The second delegate cannot further delegate that power or function.
The provisions also allow the Agency Head to make directions to the first delegate in relation to the exercise of powers of functions. The Agency Head may also limit the scope of a delegation so that the delegate may only exercise a power in certain circumstances.
Any directions that the Agency Head has made must also apply to the second delegate.
When exercising a delegated power, the delegate (including the second delegate) must apply their own discretion.
Agency Head powers or functions not to be delegated
Certain powers and functions are the personal responsibility of an Agency Head and cannot be delegated. These are contained in the following table:
| Section | Power or function |
|
Section 20 PS Act |
Employer powers etc. of Agency Head. |
|
Section 12 PS Act |
Agency Heads must promote APS Values and APS Employment Principles. |
| Subsection 23(3) PS Act |
Classification Rules Agency Heads must comply with the Classification Rules. |
| Section 73 PS Act |
Payments in special circumstances If delegated by the Public Service Minister to an Agency Head, the power cannot be subdelegated to another position by an Agency Head. Refer to The Prime Minister’s and Public Service Minister’s powers section on this page. |
The power and the responsibilities given to the Agency Head under section 20 of the PS Act are significant and cannot be delegated. That is, the Agency Head is ultimately the employer and cannot delegate that responsibility.
It is possible, however, to authorise others to carry out the rights, duties and powers that are vested in the Agency Head as the employer. For example, the Agency Head may delegate recruitment decision-making, but this does not dilute the Agency Head’s responsibility as the employer.
Careful consideration should be given as to whether it is appropriate to delegate certain powers and functions or whether an Agency Head should exercise those powers and functions personally. Examples include:
|
Section |
Power or function |
|
Subsection 15(3) PS Act |
Establishing written procedures for determining breaches of the Code of Conduct and sanctions |
|
Sections 41B(1) and 41B(9) PS Act |
Requesting the Commissioner inquire into APS employee misconduct Request the Commissioner recommend sanctions where the Commissioner is also requested to conduct an inquiry under subsection 41B(1) |
|
Section 23 the Directions |
Upholding APS Employment Principle 10A(1)(c) when deciding whether to engage or promote a person – the Merit Principle |
|
Section 44(3) the Directions |
Ensuring that during the probation period, there are processes in place to assess the suitability of the APS employee performing the duties they have been engaged for. |
|
Section 49 the Directions |
Upholding the APS Employment Principle in s 10A(1)(d) – Achieving effective performance |