General Issues Regarding Delegations

Date Published

  • A delegate cannot delegate a power under the Act to another person (Acts Interpretation Act 1901, sec 34AB(1)(b)). Where a person has been delegated a power under the Act, that person must personally exercise that power, either by doing the work themselves, or by formally agreeing with and endorsing work done by others. Giving a subordinate a rubber-stamp signature to apply in the name of the delegate is not a valid exercise of the delegation.

  • The existence of a delegation to a person for a certain matter does not prevent the making of an identical delegation to another person in respect of the same matter (Acts Interpretation Act 1901, sec 34AB(1)(d)). However, generally in such circumstances one of the delegations should be revoked to avoid confusion, or where that is not appropriate, good management practices should ensure that only one person is exercising a particular power at any one time in respect of the same matter.

  • Persons exercising a delegation do so upon their opinion, belief or state of mind in relation to the matter. Delegates are not required to try to ascertain what the opinion etc. of the actual Commissioner would be in the matter.

  • A delegation can be exercised in favour of a specified office or position, even if the office or position does not come into existence until after the delegation is given (Acts Interpretation Act 1901, sec 34AA). Consequently, 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 also those which are created after the delegation is given.

Where staff members have concerns or doubts regarding a power delegated to them, they should seek advice on the exercise of that power from their supervisor.