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Last updated: 15 November 1999
Public Service Act 1999 Advice No. 2: Delegations
Please note: This document is for reference purposes only and is no longer considered by the APS Commission to be current. It may contain good practice advice and/or advice on the transitional arrangements between the 1922 and 1999 Public Service Acts
Introduction
This advice is one of a series of advices to be issued by the Public Service and Merit Protection Commission (PSMPC) concerning the Public Service Act 1999 (the new PS Act) and the Public Employment (Consequential and Transitional) Amendment Act 1999 (the PECTA Act). It is proposed that the new legislation will come into operation on 5 December 1999 and the information contained in this advice will take effect on commencement of the legislation.
Background
2 The purpose of this advice is to:
- assist agencies to revise the delegations made by Agency Heads under legislation, other
than the Public Service Act 1922 (the old PS Act), before the new PS Act is proclaimed
- Specific advice prepared by DEWRSB about delegations under the Maternity Leave (Commonwealth Employees) Act 1973 (the Maternity Leave Act) and the Long Service Leave (Commonwealth Employees) Act 1976 (the Long Service Leave Act) is set out below in paragraphs 13 to 19; and
- provide information on delegations under the new PS Act additional to that contained in Advice Number 1 and to make some minor revisions to Attachment E to Advice Number 1.
3 At this stage, transitional delegations are not expected to be necessary for matters partly dealt with under the old PS Act. Transitional regulations are expected to provide authority for a person holding a delegation immediately before proclamation of the new PS Act to continue to exercise that delegation to the extent necessary to finalise any action commenced under the old PS Act that is authorised by the transitional regulations. Separate advice will be issued on this matter.
4 The measures necessary for an Agency Head to delegate his/her powers and functions under the new PS Act to APS employees are set out in Advice Number 1.
Delegations under legislation, other than the Maternity Leave Act and the Long Service Leave Act
5 In Advice Number 1, agencies were advised that the PSMPC, in consultation with the Australian Government Solicitor (AGS), was looking at options for using a transitional regulation to preserve the delegations made to APS employees under legislation, other than the old PS Act.
6 Many APS agencies have framed their delegations in terms of the 'concept of office'. In order to reduce legislative complexities and rigidity in APS management arrangements, the new PS Act is drafted without reference to the 'concept of office' (except in relation to Agency Heads). Accordingly, agencies will need to give careful consideration to how they will frame delegations to APS employees after the new PS Act is proclaimed.
7 To assist agencies that have framed their delegations using the 'concept of office' the AGS has drafted two instruments which will allow delegations made by an Agency Head under legislation, other than the old PS Act, the Maternity Leave Act and the Long Service Leave Act, to be remade with minimal effort once the new PS Act comes into operation.
8 Attachment A will create a new position-based structure and Attachment B will make new delegations to the persons occupying the positions created under Attachment A.
9 The instrument at Attachment A assumes that current delegation instruments specifically identify offices by way of position number or other identifier. The instrument creates positions that will correspond with the offices identified in each instrument of delegation and nominates the occupant of each new position to be the APS employee who held, or performed the duties of, the corresponding office on the day before the new PS Act commences. Agencies should examine their instruments of delegation to ensure that the suggested instrument at Attachment A is relevant to their needs.
10 The instrument at Attachment B will then enable the Agency Head to make new delegations in identical terms to the delegations made before the new PS Act was commenced.
11 An instrument based on Attachment A may be executed either before or after the new PS Act comes into operation because of the effect of section 4 of the Acts Interpretation Act 1901 (the AI Act), but the old delegations will automatically lapse on commencement of the new PS Act. An instrument based on Attachment B may be executed either before or after the new PS Act comes into operation because of the effect of section 34AA of the AI Act.
12 The use of these instruments, however, should be seen as a temporary rather than a permanent measure. In particular, agencies should note that these instruments will delegate the powers held by persons on the day before the new PS Act commences to the persons who occupy the positions on the day the new PS Act commences. If persons cease to occupy those positions it would be necessary to nominate new occupants of those positions in order to ensure that the delegations continue to operate.
13 Agencies are advised to revise all delegations to APS employees under other legislation as soon as possible to ensure that they properly identify the persons to whom the powers and functions are delegated.
Delegations under the Maternity Leave Act and the Long Service Leave Act
14 The Maternity Leave (Commonwealth Employees) Act 1973 (the Maternity Leave Act) and the Long Service Leave (Commonwealth Employees) Act 1976 (the Long Service Leave Act) have been amended to vest directly in Agency Heads (and Chief Executive Officers of non-APS agencies) various discretionary powers in relation to maternity leave and long service leave that are currently vested in the Secretary, Department of Employment, Workplace Relations and Small Business.
15 Under the Public Employment (Consequential and Transitional) Amendment Act 1999 (the PECTA Act) the delegations provisions in the Maternity Leave and Long Service Leave Act have been aligned with the powers under the new PS Act. Accordingly, under both the Maternity Leave Act and Long Service Leave Act a delegate may, in writing, delegate those powers to another person. They also authorise the person giving a delegation to issue directions to the delegate.
16 Agencies will need to make new delegations to take effect on commencement of the new PS Act.
17 Agency Heads, and Chief Executive Officers of non-APS agencies, can choose how they specify the person or persons to whom their powers or functions under the Maternity Leave and Long Service Leave Acts are to be delegated. The options are:
- to name the relevant employee or employees to whom the powers or functions are delegated; or
- in APS agencies only, to specify the person or persons nominated from time to time to occupy a position created under section 77 of the new PS Act; or
- to specify the person or persons performing specified duties from time to time.
18 Agency Heads and Chief Executive Officers may also wish to consider whether a delegate should be directed to exercise the relevant power or function in a particular way. There is scope for a direction to be given to a delegate under sub-section 9(4) of the Long Service Leave Act and sub-section 11(4) of the Maternity Leave Act.
19 Note that section 4 of the AI Act authorises a delegation to be made before the commencement of the new legislation, provided the delegation is expressed to come into operation upon the date on which the new legislation comes into effect.
20 At Attachments C and D are pro-forma delegation instruments prepared by DEWRSB to assist Agency Heads to revoke existing sub-delegations and to then delegate their powers and functions under the Maternity Leave Act and the Long Service Leave Act to employees of their agencies. Delegations under the new PS Act
21 AGS has advised that an Agency Head cannot purport to prohibit the further delegation of a power by a delegate (the first delegate) to another APS employee by a direction under section 78(11). This is inconsistent with the clearly expressed rights of the first delegate under section 78(9) of the new PS Act. An Agency Head, however, may decide to delegate all powers and functions which are able to be delegated to APS employees to a Deputy Secretary (or to the Head of a part of the Agency which operates with a degree of independence within the Agency) (the first delegate). The first delegate would then be able to delegate those powers to other APS employees (the second delegates), as appropriate. In accordance with the new PS Act, the second delegate would not have the power to delegate further such powers and functions.
22 Attachment E to Advice Number 1 has been revised (see Attachment E to this advice) to include more information in the note about the powers under sections 20 and 57.
23 Under the proposed new Public Service Regulations, Agency Heads will have the power to delegate, in writing, to another person any of the powers and functions under the Public Service Regulations. As is the case with delegations under the new PS Act, the Agency Head may identify the persons to whom the powers or functions are to be delegated by:
- naming the relevant APS employee or employees; or
- specifying the APS employee or employees occupying the position(s) created for that purpose; or
- specifying the person or persons performing specified duties from time to time.
24 Subject to drafting and approval, it is intended to circulate a draft of the new Public Service Regulations to Agencies before the new PS Act is proclaimed.
Further advice
25 The PSMPC is concentrating on using E-mail to distribute information to agencies on the new PS Act. Such information will be available through the PSMPC's Homepage at www.apsc.gov.au. The PSMPC's resources are fully stretched in endeavouring to prepare transitional regulations, new regulations, directions and advices and will not be able to handle a high volume of telephone calls about the new PS Act. In this situation, could you please put in place arrangements to inform your staff of the changes and to handle their enquiries about the new PS Act.
26 Urgent enquiries from Comnet members and their senior staff should be made by E-mail to psact@apsc.gov.au or the PSMPC's Helpline on 02 6202 3859.
27 Advice from DEWRSB is accessible through the government employment web sites at www.dewrsb.gov.au or through the PSMPC's web site.
28 Agencies may contact Andrew Barram on 6250 6268 or Susan Akhurst on 6250 6503 at the Office of General Counsel, Australian Government Solicitor, if they have any legal questions about delegations.
Jeff Lamond
Team Leader
Staffing, Structures and Performance Team
10 November 1999
Attachment A
Public Service Act 1999
Subsections 77(1) and (2)
Acts Interpretation Act 1901
Subsection 4(1)
Creation of positions and nomination of employees
I, ................................., Secretary of the Department of .........................../Agency Head of ......................., having delegated powers under:
- the ABC Act; and
- the CDE Act; and
- the FGH Act;
by instruments dated ..............., ...................... and ................. respectively to officers and employees of the Department:
- create a position (the new position) under subsection 77(1) of the Public Service Act 1999 corresponding to each office (the old office) individually identified in each of those instruments of delegation, with the new position having the same position number or other identifier as the old office; and
- nominate, as the occupant of each new position, the APS employee who held, or was performing the duties of, the corresponding old office immediately before the Public Service Act 1999 comes into operation.
This instrument takes effect when the Public Service Act 1999 comes into operation.
Dated:
Signed:
(Secretary/Agency Head)
Attachment B
ABC Act
CDE Act
FGH Act
Acts Interpretation Act 1901
Section 34AA
Renewal of delegations
I, ................................., Secretary of the Department of .........................../Agency Head of ............................, having created positions under section 77 of the Public Service Act 1999 with effect from the day the Public Service Act 1999 comes into operation and having nominated certain employees to occupy those positions, exercising my powers of delegation under the:
- the ABC Act; and
- the CDE Act; and
- the FGH Act;
delegate, under those Acts, the same powers to the persons occupying the positions having the same position numbers, as are set out in the instruments of delegation dated:
- [the date on the delegation instrument for ABC Act] in relation to the ABC Act; and
- [the date on the delegation instrument for CDE Act] in relation to the CDE Act; and
- [the date on the delegation instrument for FGH Act] in relation to the FGH Act.
This instrument takes effect when the Public Service Act 1999 comes into operation.
Dated:
Signed:
(Secretary/Agency Head)
Attachment C
Maternity Leave (Commonwealth Employees) Act 1973
Section 11
Revocation of sub-delegation and delegation of functions and powers
I, [name of Agency Head or Chief Executive Officer of the agency (however described)], Agency Head/Chief Executive Officer (however described) of the [employing agency] for the purposes of the Maternity Leave (Commonwealth Employees) Act 1973 (the Act) and acting under section 11 of the Act:
- revoke all sub-delegations made under the Act previously; and
- delegate all of my powers and functions under the Act/the following powers and functions
under the Act to:
- [identify the holder or holders of the delegation by name]; or
- an APS employee or employees who is or who are nominated from time to time to occupy the following position or positions created under section 77 of the Public Service Act 1999 [Public Service Act agencies only]; or
- the person or persons performing the following duties from time to time [specify].
The exercise of this delegation is subject to any directions issued by me by instrument in writing from time to time under sub-section 11(4) of the Act.
[or]
The exercise of this delegation is subject to the following directions: (where relevant)
This instrument commences on the day on which the Public Service Act 1999 comes into operation.
Dated [Date]
[signature]
[Name]
[Agency Head/chief executive officer of the employing agency (however described)]
[Agency]
Attachment D
Long Service Leave (Commonwealth Employees) Act 1976
Section 9
Revocation of sub-delegation and delegation of functions and powers
I, [name of Agency Head or Chief Executive Officer of the agency (however described)], the approving authority of the [employing agency] for the purposes of the Long Service Leave (Commonwealth Employees) Act 1976 (the Act) and acting under section 9 of the Act:
- revoke all sub-delegations made under the Act previously; and
- delegate all of my powers and functions under the Act/the following powers and functions
under the Act to:
- [identify the holder or holders of the delegation by name]; or
- an APS employee or employees who is or who are nominated from time to time to occupy the following position or positions created under section 77 of the Public Service Act 1999 [Public Service Act agencies only]; or
- the person or persons performing the following duties from time to time [specify].
The exercise of this delegation is subject to any directions issued by me by instrument in writing from time to time under sub-section 9(4) of the Act.
[or]
The exercise of this delegation is subject to the following directions: (where relevant)
This instrument commences on the day on which the Public Service Act 1999 comes into operation.
Dated [Date]
[signature]
[Name]
[Agency Head/chief executive officer of the employing agency (however described)]
[Agency]
Attachment E
Delegations
Under subsection 78(7) of the Public Service Act 1999 (the new PS Act), an Agency Head may, in writing, delegate to another person any of the powers or functions under the Act (other than the powers under this section).
Under subsection 78(8) an Agency Head cannot, under subsection 78(7), delegate the powers or functions to an outsider without the prior written consent of the Public Service Commissioner.
Subject to subsections 78 (7), (8), (9) and (11), a person to whom the powers and functions of an Agency Head are delegated may, in writing, delegate those powers and function to another person. Subsection 78(11) requires a delegate to comply with any direction by the Agency Head in relation to the exercise of the powers or functions so delegated.
The following is a list of the sections of the new PS Act under which powers and functions of an Agency Head may be delegated.
Powers and functions of an Agency Head
s. 15 - An Agency Head may impose sanctions for breaches of Code of Conduct. An Agency Head is to establish procedures for determining breaches of the Code of Conduct. An Agency Head is to take steps to ensure that the Agency's employees are aware of the procedures.
s. 18 - An Agency Head must establish a workplace diversity program.
s. 22 - An Agency Head may engage persons as APS employees.
s. 24 - Agency Head may determine remuneration and other conditions of employment.
s. 25 - An Agency Head may determine the duties of an APS employee.
s. 26 - An Agency Head may agree to the movement of an APS employee to the Agency Head's agency.
s. 27 - An Agency Head may notify the Public Service Commissioner in writing that an employee is excess to the requirements of the Agency.
s. 29 - An Agency Head may terminate the employment of an APS employee. (An Agency Head, however, cannot terminate the employment of an SES employee unless the Public Service Commissioner has issued a certificate under s. 38).
s. 31 - An Agency Head may give notice to an APS employee in relation to additional remuneration.
s. 37 - An Agency Head may give a notice to an SES employee concerning the payment of a specified amount if the employee retires.
s. 39 - An Agency Head must comply with a direction from an Agency Minister to engage a person as an APS employee so that the person can become a Head of Mission and assign particular duties to that person.
s. 44 - An Agency Head must provide the Public Service Commissioner with whatever information is required for the purposes of the Commissioner's report on the State of the Service.
s. 63 - An Agency Head must give an annual report to the Agency Minister for presentation to Parliament.
s. 74 - An Agency Head may engage persons overseas.
s. 77 - An Agency Head may create positions and nominate APS employees to occupy such positions.
NOTE: s. 20 states that an Agency Head has all the rights, duties and powers of an employer in respect of an APS employee of the Agency. AGS has advised that given the nature of s. 20 there should not be an attempt to delegate s. 20 as a whole, rather specific powers which fall within the terms of s. 20 are delegable (e.g. see the list contained in the Explanatory Memorandum).
AGS has also advised that although s. 57 might be thought to confer a general power on an Agency Head to manage the Department, it is not the kind of specific power that would be delegable under s. 78.
