Constants Post Pandemic Era In A Commonwealth Region: Caltona Sub-delegation Principle In Administrative Law

By Author: Premkumar Nadarajan
Total Articles: 26
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There are three main ways in which the devolution of authority can be achieved: An express power to delegate Legislation may expressly provide a statutory procedure for the devolution of a power. This most commonly takes the form of an express power to delegate the power to a
person in writing. Such a delegate can then exercise the power in their own right. An express power to appoint an authorized officer Some legislation expressly provides for the appointment of authorized officers', or the authorization of persons, to exercise specified statutory powers. Usually, an authorized officer is described as a person authorized in writing by a particular person (such as the minister or the secretary). These statutory authorizations
operate in a similar way to delegations and an authorized officer exercises the power in their own right. An implied power to authorize person in whom a statutory power is vested may, in some circumstances, whether an express power of delegation is available or not, be able to
rely on an implied power to authorize an official to exercise the statutory power on the person's behalf. Such ...
... a power is most commonly referred to as an implied power to authorize. However, it is also variously referred to as the alter ego principle, the Carltona principle, or an implied power to delegate. Express powers of delegation Most of the common law principles relating to the delegation of power under an express power of delegation have been codified in sections
34A, 34AA and 34AB of the Acts Interpretation Act 1901 (the Interpretation Act). Delegates must exercise their own discretion Section 34A of the Interpretation Act provides: Where, under any Act, the exercise of a power or function by a person is dependent upon the opinion, belief or state of mind of that person in relation to a matter and that power or function has been delegated in pursuance of that or any other Act, that power or function may be exercised by the delegate upon the opinion, belief or state of mind of the delegate in relation to that matter. Section 34A expresses the fundamental effect of a delegation of a power made under an express power of delegation, that is, a person to whom a power is delegated under an express power of delegation must exercise the delegated power by applying their own discretion. As a
corollary to that, the exercise by a delegate of a delegated power is, as a matter of law, an act of the delegate. It is not an act of the person who delegated the power to the delegate. The fact that a delegate exercises a delegated power by applying their own discretion and, at law, acts in their own capacity, means that the person who delegates the power cannot either: direct the delegate in the exercise of the delegate's discretion; or make the exercise by the delegate of the power conditional on certain events occurring, or on the delegate taking certain action, for example, consulting another person. This general position is subject to alteration by parliament which can, in particular cases, provide that a delegate is, in the exercise of a delegated power, subject to the directions of, or conditions imposed by, the person who delegates the power. While a delegate's exercise of a delegated power cannot generally be subject to direction or conditions imposed by the person who delegates the power, that person can issue non-binding guidelines which a delegate is to have regard to in the exercise of a power. Such guidelines
cannot, however, require a decision-maker not to exercise a discretion. Failure to comply with guidelines would not, of itself, invalidate a delegate's exercise of power. General principles codified in the Interpretation Act Section 34AB of the Interpretation Act sets out a number of more general principles related to the exercise of an express power of delegation. Section 34AB relevantly provides: Where an Act confers power on a person or body (in this section called the authority) to delegate a function or power: 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; . . . A delegation made generally or as otherwise provided Paragraph 34AB(a) of the Interpretation Act does not alter
the fundamental effect of a delegation of power which is expressed above, that is, that delegates must exercise their own discretion and are not subject to direction or conditions imposed by the person who delegates the power. Rather, it is concerned with the extent to which a power may be delegated. Some statutory powers may be exercised with respect to a
number of different matters, or classes of matters, and are capable of division into parts. Paragraph 34AB(a) recognizes that a person in whom a power is vested may, under an express power of delegation, delegate part of that power, that is, the power so far as it relates to particular matters or classes of matters. Where such a delegation is made care must be taken to avoid expressing the delegation as imposing conditions rather than delegating only part of a power. The power to delegate cannot be delegated Paragraph 34AB(b) of the Interpretation Act ensures that 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 that person to choose which other persons may exercise the power. In other words, the person nominated by parliament to exercise the power will always retain control over the class of persons who are designated to exercise the power. This principle can be modified by an express power of sub-delegation. The exercise of a power by a delegate is deemed to be the exercise by the person or body who delegated the power Paragraph 34AB(c) of the Interpretation Act is intended to preclude a recipient of a delegate's decision appealing to the person who
delegated the power to make the decision (the delegator) and requesting the delegator to make a further decision personally. Paragraph 34AB(c) only applies for the purpose of the Act containing the power to delegate. So, for example, a decision made by a delegate is, for the purpose of another Act such as the Administrative Decisions (Judicial Review) Act 1977, a decision of the delegate. The delegator can still exercise a power which has been delegated. Paragraph 34AB(d) of the Interpretation Act recognizes that a delegation under an express power of delegation, while enabling a delegate to exercise powers in their own right, does not
result in the power being removed from the delegator. The delegator can still exercise the powers as necessary. Some powers are not delegable It is important to note that, despite the presence of a seemingly broad delegation provision, some powers may not be delegable. A power may be non-delegable either because there is an express exception to the delegation power or because as a matter of statutory interpretation it is evident that the power was intended to be exercised personally. Where the legislation entrusts a function to a person with specialist skills or qualifications there may be a strong argument that the function could not be entrusted (by way of delegation or authorization) to a person without such specialist skills or qualifications. For example, occupational health and safety legislation may provide medical practitioners with certain functions. Choice of delegate The choice of delegate is largely a
matter to be determined by the person making the delegation. However, the choice of delegate may need to be reasonable.8 The choice of delegate may also be expressly or impliedly limited by the legislation. Revoking a delegation Sections in an Act that confer a power to delegate do
not ordinarily deal expressly with the revocation or variation of such delegations. However, subsection 33(3) of the Interpretation Act generally operates so as to allow a delegator to rescind, revoke, amend or vary any instrument of delegation that they have been required to
make by way of an instrument in writing. The power to rescind etc. is exercisable in the like manner and subject to the like conditions as the power to make the delegation by written instrument in the first place. Delegations do not automatically cease to have effect merely
because there is a change in the identity of the person who is the delegator. However, it is possible for the new holder of the power to expressly revoke or vary delegations given by the person who previously was the delegator. Form of instruments of delegation Legislation which
confers an express power of delegation on a person usually requires that power to be exercised in writing, that is, by making a written instrument. An instrument of delegation most commonly specifies classes of position-holders to whom powers are delegated, removing the
need to make a separate instrument for each and every person to whom those powers are delegated. It is also possible for delegations to be made to named individuals or the holders of named positions. A delegate literally acts in their own name and accordingly would sign documents in their own name as a delegate of the delegator. Delegation to classes of offices or positions Section 34AA of the Interpretation Act provides: Where an Act confers power to delegate a function or power, then, unless the contrary intention appears, the power of delegation shall not be construed as being limited to delegating the function or power to a
specified person but shall be construed as including a power to delegate the function or power to any person from time to time holding, occupying, or performing the duties of, a specified office or position, even if the office or position does not come into existence until after the
delegation is given. The purpose of this provision is to make it clear that an express power of delegation does not have to be exercised in favor of a nominated individual. Rather, it may be exercised by reference to a person or persons from time to time holding, occupying or
performing the duties of, a specified office or position. However, positions can be created by an agency head under the express power in section 77 of that Act or under an agency head's general employer powers conferred by section 20 of that Act. Provided that the delegate can
be identified with sufficient certainty a delegation can be made to a position in an agency whether that position has been expressly created by an agency head under section 77 or has been identified in the exercise of the agency head's general employer powers. Delegate must be able to be identified: Section 34AA of the Interpretation Act effectively codifies the common law position about delegation to positions stated in Owendale Pty Ltd v Anthony. At common law a delegation can be made to the holder of a position provided that the delegate can be identified with sufficient certainty. In Owendale the requirement of specificity was expressed in terms of the need to be able to identify the person to whom a power was delegated. The words specific and specify connote something explicit, definite and precise. Taking into account the common law history of delegations, a delegation will be to a person holding a specified position; if it is possible to identify the position at any given time. Applying the standard accepted by Windeyer J in Owendale, the test of whether a particular position will be identified clearly enough is if a person, who is familiar with public service classifications, would be able to identify the relevant position at a particular time. Delegating to future positions Section 34AA of the Interpretation Act extends the common law in one important respect. It is not possible at
common law to delegate powers to the holder of a position which has not come into existence at the time a delegation is made. Section 34AA, however, provides that a power of delegation can be exercised in favor of a person holding, occupying or performing the duties of a
specified office or position, even if the office or position does not come into existence until after the delegation is given. Those words make it clear that, if a delegation is made to persons holding a position in a class of positions, the delegation will operate in relation to positions
falling within the relevant class and which are created after the delegation is given. Change in the person holding the position Where legislation confers on a person holding a specified position the power to delegate a power vested in them as the holder of that position, a change
in the person holding the position will not result in an instrument of delegation executed by a person who formerly held the position ceasing to have effect. This issue has been considered by the Federal Court of Australia in Kelly v Watson, where Neaves J held that there was
nothing in the relationship between a delegator and a delegate which required that a delegation cease to have any valid operation upon the delegator ceasing to hold office. Reading down an instrument of delegation to ensure its validity An instrument of delegation
made under a provision of an Act requiring the delegation to be in writing is, unless the contrary intention appears, so far as possible to be construed as being within the power of delegation conferred by the Act, even if the instrument is capable of being construed, to some
extent, as in excess of the power of delegation. The legal position is not settled as to whether a statutory authorization could operate in relation to offices or positions falling within a relevant class and which are created after the authorization is given. In the absence of legislative clarification along the lines of section 34AA a safe legal position to adopt is to proceed on the
basis that a statutory authorization does not operate in relation to a future office or position. Implied power to authorize The general principle In some circumstances a person in whom a power is vested can authorize another person to exercise that power for and on his or her
behalf. It is essential to note at the outset that a person exercising a power for and on behalf of another does so as the alter ego of the person in whom the power is vested. That is, the act of the authorized person is, at law, the act of the person in whom the power is vested. This is
fundamentally different to the act of a delegate which, at law, is the delegate's, and not the delegator's, act. The case most often relied on as authority for the proposition that a person may authorize another to exercise a power for and on his or her behalf is the English case of
Carltona Ltd v Commissioners of Works, which has been expressly approved in Australia. In Carltona, the English Court of Appeal considered whether a minister had to exercise personally a power to take possession of land, or whether the power could be exercised by one of the Minister's departmental officials for and on behalf of the Minister. The court concluded that the power in question could be exercised by a departmental official for and on behalf of the Minister. The court's reasoning indicates that there are two grounds which justify a minister
being able to authorize an official to exercise a power vested in the minister: the minister is ultimately responsible to the parliament for the decision of an authorized official; and in modern
government, ministers have so many functions and powers, administrative necessity dictates that they act through duly authorized officials. In Australia, the decision in Carltona has been applied to enable senior public servants in whom powers are vested, for example,
departmental secretaries, to authorize more junior employees to exercise those powers for and on their behalf. In O'Reilly v State Bank of Victoria Commissioners, the High Court was concerned with a purported exercise of power under section 264 of the Income Tax Assessment Act 1936. Section 264 conferred on the Commissioner of Taxation the power to
issue notices to persons requiring them to furnish information, give evidence, or produce books, documents and other papers in their custody or control. The Court, by majority, considered that the Commissioner did not personally have to exercise the power to issue relevant notices, but could act through a duly authorized officer. Gibbs CJ and Wilson J,
representing the majority, based this conclusion on the kinds of administrative necessity arguments referred to in Carltona. Circumstances in which the general principle applies: Whether the principle expressed in Carltona and O'Reilly applies so that a power to authorize a person to exercise a power for and on behalf of another can be implied in particular circumstances is a matter of statutory interpretation. A power to authorize cannot be implied where parliament intends a power be exercised personally. Whether a power is to be exercised personally is determined by looking at the nature, scope and purpose of the power. Many
routine administrative powers do not require personal exercise. Indeed, administrative necessity dictates that such decisions are made by persons other than the holder of the relevant statutory power. In contrast, the exercise of a power that may have serious or drastic consequences for an individual may require the personal attention of the holder of the statutory power. The courts have also held that a power to authorize cannot be implied where the minister's power is by way of review of his or her departmental secretary, or where the minister's function under the legislative provision is a central feature of the legislative scheme.
Administrative necessity Administrative necessity encompasses a number of factors including the volume of decision making and the orderly management of Departmental business. In O'Reilly the court considered that it was not possible for the Commissioner or a Deputy Commissioner to deal personally with millions of taxation assessments. To do so would
reduce the administration of taxation laws to utter chaos. In O'Reilly the Commissioner was able to, and had, delegated the relevant power to Deputy Commissioners but the Commissioner had not delegated his powers to other officers of the taxation department. Decisions were then made by departmental employees acting under authorizations given by the Deputy
Commissioners. The court found that, in the circumstances, this arrangement was valid. Where there is an express power of delegation In O'Reilly, the High Court said that the presence in legislation of an express power of delegation does not necessarily mean a power to authorize cannot be implied.

lecturer at a private learning institution ( UTAR).