Legal Briefing No. 74

Number 74

14 December 2004

Delegations, authorisations and the Carltona principle

Jake Blight

Jake Blight Counsel
Australian Government Solicitor
T 02 6253 7035
F 02 6253 7304
jake.blight@ags.gov.au

Peter Lahy

Peter Lahy Senior General Counsel
Australian Government Solicitor
T 02 6253 7085
F 02 6253 7304
peter.lahy@ags.gov.au

Just how well departments and other agencies administer
their delegations and authorisations is crucial to how
efficiently government operates. This briefing aims to
assist clients in this process by outlining the nature
of powers of delegation and authorisation and the legal
principles relevant to them.1

When parliament creates a statutory power it vests that
power in some individual or body who is then able to exercise
it.2 In Commonwealth legislation, this vesting
of power is most commonly effected in one of the following
three ways:

  • Power is vested in a person holding an existing office
    in the executive government, for example, the Governor-General,
    a minister or the secretary of a minister's department.
  • Power is vested in an office or body created to exercise
    particular statutory powers, for example the Bankruptcy
    Act 1966 confers a number of powers and functions on
    the 'official trustee'.
  • Power is vested in a person 'appointed' or 'authorised' by
    a particular person for the purpose of exercising the
    power. For example, an 'authorised officer',
    for the purpose of a section of the Customs Act 1901 means an officer of Customs authorised in writing by
    the CEO to exercise the powers or perform the functions
    of an authorised officer under that section.

It is a fundamental principle of administrative law that
when parliament vests power in a person that person is
prima facie required to exercise the power personally.
The principle is expressed in the maxim delegatus non
potest delegare, that is, a delegate may not delegate to another
person the power which has been delegated to them. The
exercise of the power by another person will be invalid
if the person in whom the power is vested is held to have
improperly abdicated the exercise of the power to that
other person.

However, the maxim is not absolute.3 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 authorised officer

Some legislation expressly provides for the appointment
of 'authorised officers', or the authorisation
of persons, to exercise specified statutory powers. Usually,
an 'authorised officer' is described as a person
authorised in writing by a particular person (such as the
minister or the secretary). These statutory authorisations
operate in a similar way to delegations and an authorised
officer exercises the power in their own right.

An implied power to authorise

A 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
authorise 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 authorise. 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.4

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:

  1. the delegation may be made either generally or as
    otherwise provided by the instrument of delegation;
  2. the powers that may be delegated do not include that
    power to delegate;
  3. 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;
  4. 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.5 Paragraph
34AB(a) recognises 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.6

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 recognises
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.7

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 authorisation) 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.9 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 favour 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.10

The Public Service Act 1999 generally does not operate
by reference to 'offices'. 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.

A valid delegation may also be made by reference to classifications.
For example, a delegation could be given to persons holding
positions at the EL1 classification in the ABC Branch of
the DEF Division of the GHI Department. Such a delegation
would be valid whether or not an agency head had created
positions to be occupied by each of the persons holding
those classifications in the specified branch of the specified
division under section 77.

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.11 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.12 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,13 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.14 Section 34AA, however, provides that a power of
delegation can be exercised in favour 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.15 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,16 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.17

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.18

Statutory authorisations

Some legislation provides for the appointment of 'authorised
officers', or the authorisation of persons, to exercise
specified statutory powers.

For example, section 20 of the Export Control Act 1982 provides:

The Secretary may, by instrument signed by the Secretary,
appoint a person, or persons included in a class of persons,
to be an authorized officer or authorized officers, as
the case may be, for the purpose of:

  1. the exercise by that person or those persons of
    the powers of an authorized officer under this Act
    or of such of those powers as are specified in the
    instrument; or
  2. the performance by that person or those persons
    of the functions of an authorized officer under this
    Act or of such of those functions as are specified
    in the instrument.

The Act confers particular functions and powers on 'authorized
officers'. In such a case the authorised officer
exercises the power in his or her own right. What is said
above in relation to delegations applies also to what are
termed 'statutory authorisations', though the
principles apply as a matter of common law and not by the
operation of the Interpretation Act. Accordingly, the principles
relating to delegates exercising their own discretion,
the form of instruments of delegation, and the effect of
a change of person holding the office of delegator apply
equally to statutory authorisations.19

However, it should be noted that section 34AA of the Interpretation
Act which expressly allows a delegation to be made to a
future office or position does not apply to statutory authorisations.
The legal position is not settled as to whether a statutory
authorisation could operate in relation to offices or positions
falling within a relevant class and which are created after
the authorisation 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
authorisation does not operate in relation to a future
office or position.

Implied power to authorise

The general principle

In some circumstances a person in whom a power is vested
can authorise 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 authorised 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 authorise another to exercise a power
for and on his or her behalf is the English case of Carltona
Ltd v Commissioners of Works,20 which has been
expressly approved in Australia.21 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 authorise an official to exercise a power vested
in the minister:

  • the minister is ultimately responsible to the parliament
    for the decision of an authorised official; and
  • in modern government, ministers have so many functions
    and powers, administrative necessity dictates that they
    act through duly authorised officials.22

In Australia, the decision in Carltona has been applied
to enable senior public servants in whom powers are vested,
for example, departmental secretaries, to authorise more
junior employees to exercise those powers for and on their
behalf.

In O'Reilly v State Bank of Victoria Commissioners,23 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 authorised
officer. Gibbs CJ and Wilson J, representing the majority,
based this conclusion on the kinds of administrative necessity
arguments referred to in Carltona.24

Circumstances in which the general principle applies

Whether the principle expressed in Carltona and O'Reilly applies so that a power to authorise 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 authorise 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.25 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 authorise cannot
be implied where the minister's power is by way of
review of his or her departmental secretary,26 or where
the minister's function under the legislative provision 'is
a central feature of the legislative scheme'.27

Administrative necessity

Administrative necessity encompasses a number of factors
including the volume of decision making and the orderly
management of Departmental business.28 In O'Reilly the court considered that it was not possible for the Commissioner
or a Deputy Commissioner to deal personally with literally
millions of taxation assessments. To do so would reduce
the administration of taxation laws to chaos.29 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 authorisations 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 authorise cannot be implied.30 A similar statement was made in Peko-Wallsend.31 In O'Reilly the Commissioner of Taxation had a power of delegation
that allowed him or her to make a delegation 'to
a Deputy Commissioner of Taxation or other person'.32 Gibbs CJ noted that 'the fact that the Act itself
contemplates that the delegation will be to a Deputy Commissioner
only (notwithstanding that subsection 8(1) of the Taxation
Administration Act 1953 confers a wider power of delegation)
suggests that it was not intended that there should be
a wholesale delegation of powers to comparatively minor
officials'.33 His Honour also suggested that such
a delegation would not be practical.

However, as discussed below, an express power of delegation,
particularly in the context of a power that may have serious
consequences for an individual, may in some instances indicate
that the Carltona principle cannot be relied on.

The absence altogether of an express power of delegation
does not give rise to any necessary implication that a
power to authorise cannot be implied. Indeed, the need
to imply a power to authorise may be greatest where there
is no express power of delegation.34

Nature of the power

The decision in O'Reilly indicates that a power
to authorise can be implied where it is not administratively
practicable to exercise an express power of delegation
in respect of every person to whom the power could be delegated,
and as a matter of administrative necessity the holder
of the power cannot exercise the power personally. Gibbs
CJ in O'Reilly accepted that the exercise of the
power in question in that case was likely to adversely
affect the rights of individuals but, in the circumstances,
considered that the power could nevertheless be exercised
on the basis of an authorisation.

Since the decision in O'Reilly the Federal Court
has, on at least two occasions, taken a relatively strict
view of administrative necessity where the power in question
had potential to adversely affect the rights of individuals.

In Ozmanian v Minister for Immigration, Local Government
and Ethnic Affairs35 the Federal Court found that the
Carltona principle is not applicable to decisions made
under section 417 of the Migration Act 1958. Subsection
417(1) of that Act confers power on the Minister, to do
a number of things including, in effect, grant a protection
visa to persons previously determined not to be refugees
if the Minister considers it 'in the public interest' to
do so. Subsection 417(3) provides that the power may only
be exercised by the Minister personally. In that case Mr
Ozmanian wrote to the Minister asking him to exercise his
power under section 417. The request was considered by
a departmental official in accordance with detailed guidelines.
The official concluded that the matter did not require
the Minister's personal attention and drafted a letter
rejecting Mr Ozmanian's request for a visa. The letter
was signed by the Minister's senior advisor but was
not seen by the Minister personally. The court found that
the Minister's senior advisor had made the decision
that the Minister would not consider whether to exercise
his power under section 417.

Noting that 'traditionally the courts have been
reluctant to imply a statutory authorisation to act by
others where the exercise of the power may have serious
or drastic consequences on an individual'36 Merkel
J went on to find that the scope, nature and purpose of
the exercise of power by the Minister under section 417,
including the power to decide not to consider an application,
was such that the Carltona principle could not be relied
on to enable the Minister to authorise another to act on
his or her behalf in this regard.

In Din v Minister for Immigration and Multicultural
Affairs,37 the court was concerned with the exercise of the powers
of the Minister for Immigration and Multicultural Affairs
to approve certain English language tests and the times
and places at which those tests were to be administered.

Wilcox J concluded that Carltona could not be relied on
to enable departmental officers to exercise the relevant
powers for and on behalf of the Minister. That conclusion
was based on there being no administrative necessity for
the Minister to exercise the powers through an authorised
officer or officers. More particularly, the Minister had
an express power to delegate the relevant powers to any
relevant departmental officers. Moreover, the nature of
the powers involved was such that their exercise had potentially
serious consequences for affected individuals.38

Ozmanian and Din demonstrate the need for careful consideration
to be given to whether there is a power to authorise in
each particular case; particularly where there is an express
power of delegation available. Nevertheless, it is clear
from the High Court decision in Dooney v Henry39 that
O'Reilly is still good law and that the existence
of a power of delegation is a relevant but not conclusive
factor to be taken into account when considering the existence
of an implied power to authorise. The single judge in Dooney,
Callinan J, quoted at length from O'Reilly, including
the passage where Wilson J observed that:

No permanent head of a department in the Public Service
is expected to discharge personally all the duties which
are performed in his name and for which he is accountable
to the responsible Minister.

Likewise, the Full Court of the Federal Court in Commissioner
of Taxation v Mochkin40 recently affirmed that where a
power is not intended to be exercised only by the Commissioner
or delegate personally it was open for the Commissioner
or his or her delegate to act through an authorised officer.

Form of instruments of authorisation

An authorisation may be express or implied. Whether a
written authorisation is required will depend on the nature
of the power and the administrative arrangements in place
in the particular department. A written instrument of authorisation
will provide greater certainty as to who has the authority
to exercise a particular power.

However, where it is clear from the policy and administrative
practices of a department that certain officials exercise
a power, particularly a routine administrative power, for
and on behalf of the holder of that power, a written instrument
may not be necessary. Having said that, it is generally
preferable to execute a written instrument of authorisation.

A person acting on another's behalf under an authorisation
acts in the name of the holder of the power and accordingly
would execute documents in particular circumstances either
by affixing a facsimile signature of the holder of the
power or by signing for that person. Strictly speaking,
it is not necessary for a person acting under such an authorisation
to include their own name but it is good administrative
practice to do so.41

Change in person holding office

As noted above, in Kelly v Watson, the Federal Court held
that a delegation continued to operate even though there
had been a change in the person holding the office under
which the delegation was made. In arriving at that conclusion,
Neaves J stated that:

There is . . . nothing in the relationship between the
person delegating the power and the delegate, as there
would be if the relationship was one of principal and
agent, which would require that the delegation should
cease to have any valid operation upon the delegator
ceasing to hold office.42 [Emphasis added.]

It would seem to follow from this statement that an authorisation,
which affects a principal and agent relationship, ceases
to have effect when the person who gives the authorisation
ceases to hold office.

However, more recently, the Full Court of the Federal
Court in Mochkin43 took the view that the act of authorising
another person to perform specified functions or exercise
specified powers in the name of the person giving the authorisation 'does
not import into the "relationship" between
the authority and the subordinate the principles governing
a principal and agent relationship'.44 In Mochkin the Full Court concluded that, at least in the context
of authorisations under the Income Tax Assessment Act
1936,
a change in the holder of the power did not result in authorisations
given by that person ceasing to operate. In other words,
authorisations given from one official to another survived
even when the person who gave the authorisation leaves
his or her office or position.

It should be noted that in Mochkin neither the court in
the first instance45 nor the Full Court on appeal appears
to have considered Kelly v Watson or the line of authority
that follows it on this point.46

Authorisations given under some statutory provisions clearly
cease to have effect when the person who gives such an
authorisation ceases to hold office.47 Those authorisations
are not 'statutory authorisations' in the sense
described above. Rather they are authorisations given under
specific legislative provisions to exercise powers for
and on behalf of the person giving the authorisation.

Jake Blight is a Counsel who provides legal
advice on a range of matters including statutory interpretation,
delegations and authorisations, employment law and the
making and implementation of new legislation. He has expertise
in assisting clients to develop more efficient and effective
mechanisms for managing delegations and authorisations.
Jake also prepares and delivers training for clients about
statutory interpretation and the machinery of government.

Peter Lahy is a Senior General Counsel who
specialises in providing advice on complex constitutional
and statutory interpretation matters – with a particular
focus on Commonwealth financial, financial administration
and machinery of government matters. Peter has provided
ongoing advice to many clients on their enabling legislation
and on machinery of government issues including delegations
and authorisations and the making of orders under the Interpretation
Act necessitated by changes in administrative arrangements.

Notes

1 The briefing updates and replaces AGS Legal
Briefing No. 24, 24 April 1996, prepared by Leo Hardiman
of AGS's Office of General Counsel.

2 While this briefing refers primarily to the
devolution of powers, the principles it sets out apply
equally to the devolution of functions.

3 See, for example, Ex parte Forster; Re
University of Sydney [1963] SR (NSW) 723 at 733.

4 See, for example, subsection 78(11) of the
Public Service Act 1999 and subsection 496(1A) of the Migration
Act 1958.

5 A power will not always be capable of division
(see, for example, Singh v Minister for Immigration,
Local Government and Ethnic Affairs (1989) 90 ALR 397).

6 See, for example, subsection 78(9) of the
Public Service Act 1999.

7 See also Huth v Clarke (1890) 25 QBD 391
at 395 per Wills J.

8 See Aronson & Dyer Judicial Review
of Administrative Action (2nd Edition) at 264. Generally,
a decision may be found to be unreasonable if it is so
unreasonable that no reasonable person could have reached
it.

9 Also note section 25 of the Interpretation
Act on definitions of 'document' and 'writing'.

10 The references in section 34AA to 'person', 'office' and 'position' include 'persons', 'offices' and 'positions' (see
paragraph 23(b) of the Interpretation Act).

11 (1967) 117 CLR 539.

12Macquarie Dictionary 2nd Edition.

13 (1967) 117 CLR 539 at 563.

14 An instrument of delegation speaks at the
time it is made (see, generally, Australian Chemical
Refiners Pty Ltd v Bradwell unreported NSW Court of Criminal Appeal,
28 February 1986 BC8601215).

15 Section 34AA was amended to include these
words by the Law and Justice Legislation Amendment Act
1994.

16 (1985) 10 FCR 305.

17 This aspect of the decision in Kelly
v Watson was affirmed by the Full Court of the Federal Court in
Aban v Minister for Immigration, Local Government
and Ethnic Affairs (1991) 31 FCR 93 at 98–99 and in Johnson
v Veterans' Review Board (2002) 71 ALD 16 at 26–27.

18 See paragraph 46(1)(b) of the Interpretation
Act.

19 As to the application of the latter two
principles to statutory authorisations see Barton v
Croner Trading Pty Ltd (1984) 54 ALR 541; and Benwell
v Gottwald (1978) VR 253 cited with approval by Neaves J in Kelly
v Watson at 319.

20 [1943] 2 All ER 560.

21 See, for example, Re Reference Under
Section 11 of Ombudsman Act 1976 (1979) 2 ALD 86 and O'Reilly
v State Bank of Victoria Commissioners (1983) 153 CLR 1.

22 [1943] 2 All ER 560 at 563.

23 (1983) 153 CLR 1.

24 (1983) 153 CLR 1 at 12–13 per Gibbs
CJ and 31 per Wilson J.

25Minister for Aboriginal Affairs v Peko-Wallsend
Ltd (1986) 162 CLR 24 at 38, per Mason J.

26Sean Investments Pty Ltd v Mackellar (1981)
38 ALR 363.

27Peko-Wallsend, 162 CLR 24 at 38.

28 In Ombudsman Brennan J observed the wholesale
delegation of the Commissioner's powers would be 'wholly
destructive of any semblance of administrative order and
efficiency' (1979) 2 ALD 86.

29 (1983) 153 CLR 1 at 12.

30 (1983) 153 CLR 1 at 12–13 per Gibbs
CJ and 32 per Wilson J.

31Peko-Wallsend, 162 CLR 24 at 38.

32 Subsection 8(1) of the Taxation Administration
Act 1953.

33 (1983) 153 CLR 1 at 12.

34 Re Patrick John Walker, Commissioner
for Fair Trading; Ex parte Fremantle Islamic Association
Inc. [2003] WASC 252 (17 December 2003) at para 29.

35 (1996) 137 ALR 103.

36 (1996) 137 ALR 103 at 121 citing R v
Superintended of Chiswick Police Station; Ex parte Sacksteder [1918]
1 KB 578.

37 (1997) 147 ALR 673, Wilcox J.

38 (1997) 147 ALR 673 at 682.

39 (2000) 174 ALR 41.

40 (2003) 127 FCR 185.

41 See, for example, Re Patrick John Walker,
Commissioner for Fair Trading; Ex parte Fremantle Islamic
Association Inc. [2003] WASC 252 (17 December 2003).

42 (1985) 10 FCR 305 at 318.

43 (2003) 127 FCR 185.

44 (2003) 127 FCR 185 at 213.

45 (2002) 50 ATR 134.

46 See in particular Johnson v Veterans' Review
Board (2002) 71 ALD 16 at 27 and Aban v Minister
for Immigration Local Government and Ethnic Affairs (1991) 31 FCR 93 at
98–99.

47 See, for example, sections 18C and 19 of
the Interpretation Act.

AGS contacts

This briefing was prepared by Jake Blight and Peter Lahy
of our Canberra office. For further information please
contact Jake on tel 02 6253 7035, email <jake.blight@ags.gov.au> or
Peter on tel 02 6253 7085, email <peter.lahy@ags.gov.au>
or any of the following lawyers:

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Peter
Bowen

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Jude Lee

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