Delegations under the Public Service Act 1999 and subordinate legislation

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Overview

The management of delegations is crucial to the legitimacy of employment decisions and actions undertaken in the Australian Public Service (APS).

This page provides agencies with limited and general information about the delegation of powers and functions under the Public Service Act 1999 (PS Act) and subordinate legislation (APS legislation) —the Public Service Regulations 2023 (PS Regulations), the Public Service Classification Rules 2000 (the Classification Rules) and the Australian Public Service Commissioner's Directions 2022 (the Directions).

Other legislation relevant to APS employment, such as in the Maternity Leave (Commonwealth Employees) Act 1973, the Long Service Leave (Commonwealth Employees) Act 1976, and an agency’s enterprise agreement or enabling legislation may also give rise to delegations.

The Australian Government Solicitor’s legal briefing on Delegations, authorisations and the Carltona principle outlines the nature of powers of delegation and authorisation and the legal principles. It provides the APS with useful guidance on administering delegations and authorisations which are crucial to efficient government operations.

Agencies are encouraged to seek legal advice on developing delegation instruments or where there is uncertainty on delegation issues.

Agencies should understand their obligations under the Legal Services Directions 2017 issued by the Attorney-General’s Department, which require consultation in certain circumstances where an Agency is seeking external legal advice.

Where agencies obtain legal advice on the interpretation of the APS legislation, they are required to provide the Commission a copy of the request and the advice obtained, via legal@apsc.gov.au.

General information

APS legislation has specific provisions that allow the person who is provided powers and functions under the legislation (the delegator), to delegate those powers and functions to another person (the delegate). There are limits on who an APS Agency Head may delegate a power or function to under APS legislation, including non-APS employees (referred to as outsiders). For further information, see the Agency Heads powers and delegation to an outsider section.

Agencies should ensure that:

  • delegations are within the scope permitted by the legislative framework
  • instruments of delegation are established and regularly reviewed for appropriateness and accuracy
  • both the delegator and delegate understand their responsibilities
  • delegates possess the necessary skills and attributes to exercise the delegated powers and functions and receive appropriate training
  • appropriate internal audit, review and monitoring is undertaken, and
  • appropriate records of delegations, including those that have been superseded, are maintained.

Power to delegate

APS legislation has specific provisions that enable the delegation of powers and functions. These are:

  • section 78 of the PS Act
  • section 105 of the PS Regulations
  • section 68 (Commissioner powers) and 69 (Agency Head powers) of the Directions
  • section 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.

General considerations when making a decision

A person may apply for review of an administrative decision under the Administrative Decisions (Judicial Review) Act 1977. Agencies should seek their own legal advice if they are concerned that the validity of a particular decision taken by a delegate may be challenged.

A checklist for delegates to consider when making a decision is summarised below.

  • The person who makes the decision must have jurisdiction, i.e. a valid delegation to make the decision.
  • The procedures that are required by law to be observed in the making of the decision must be observed.
  • The decision must not be an improper exercise of the power conferred by the enactment— examples of this would be where:
    • an irrelevant consideration was taken into account
    • the power was exercised for a purpose other than that for which it was conferred
    • the discretionary power was exercised at the direction of another
    • the discretionary power was exercised in accordance with a rule or policy without regard to the merits of the case.
  • The decision must not be induced or affected by fraud.
  • There must be evidence or other material to justify the making of the decision.
  • The decision must not involve an error of law, whether or not the error appears on the record of the decision.
  • The decision must be made in accordance with the rules of natural justice.
  • The decision must not otherwise be contrary to law.

Delegation instruments

It is important that delegation instruments clearly identify:

  • the delegate
  • the section of the legislation that permits the delegation
  • the power or function being delegated
  • whether any limitations are to be imposed on the scope of the delegation.

Agency Heads may choose how they specify how their powers or functions are to be delegated. They may:

  • name the relevant employee or employees to whom the powers or functions are delegated
  • specify that the power or function is delegated to the person or persons performing from time to time the duties specified in the instrument
  • specify that the power or function is delegated to the person or persons nominated from time to time to occupy a specified position created under section 77 of the PS Act.

In drafting instruments of delegation, agencies may consider how to set out the relevant powers to be delegated. It may be helpful to group delegations by function/topic, for example in relation to engagement, termination, assignment of duties etc. This reduces the risk of a decision point being missed within a process.

Where a person holding a specified role or position under legislation makes an instrument of delegation, those delegations remain in place when there is a change of the person holding that position. For example, instruments of delegation made by the Australian Public Service Commissioner or an Agency Head continue to be in effect when the person in those positions changes, until the instruments are otherwise revoked, or revoked and replaced.

Ministerial powers

The PS Act provides for a number of powers or functions to be exercised by the Prime Minister and the Public Service Minister (i.e. the Minister who administers the PS Act). It also enables the Prime Minister and Public Service Minister to delegate powers and functions.

Prime Minister

Section 78(1) of the PS Act, together with section 34AAB of the Acts Interpretation Act 1901 (AI Act), enables the Prime Minister to delegate other Ministers to perform on their behalf, the powers and functions they have under the PS Act.

Public Service Minister

Section 78(2) of the PS Act, together with section 34AAB of the Acts Interpretation Act 1901 (AI Act), enables the Public Service Minister to delegate other Ministers to perform on their behalf, the powers and functions they have under the PS Act.

The Public Service Minister’s power provided in section 24 of the PS Act cannot be delegated.

Public Service Minister - Payments in special circumstances power

The Public Service Minister has the power under section 73 of the PS Act to make payments to persons in special circumstances. Section 73 of the PS Act allows the Public Service Minister to delegate their powers to a ‘senior official’. A senior official is defined in subsection 78(12) as:

  • a person who holds any office or appointment under an Act
  • a Senior Executive Service (SES) employee or acting SES employee.

The Public Service Minister has delegated this power only to Agency Heads, who may not subdelegate this power. 

Section 73 of the PS Act and regulation 104 of the PS Regulations provide the terms for such payments.

The Australian Public Service Commissioner’s powers

The Commissioner may delegate the powers or functions conferred on them by the PS Act, the PS Regulations, the Directions and the Classification Rules; however, there has been no delegation of these powers to Agency Heads.

The Merit Protection Commissioner’s powers

The MPC may delegate the powers or functions conferred on them by the PS Act and the PS Regulations; however, there has been no delegation of these powers to Agency Heads.

Agency Heads powers and delegation to an outsider

As outlined above, APS legislation contains provisions that allows Agency Heads to delegate their powers or functions; however, those provisions also set a limitation.

An Agency Head cannot delegate powers or functions to an ‘outsider’ without the prior written consent of the Commissioner. An outsider defined in section 78(8) of the PS Act means a person who is not:

  • an APS employee
  • a person appointed to an office by the Governor-General, or by a Minister, under a law of the Commonwealth.

This requirement for the Commissioner’s prior written consent also extends to the subdelegation of Agency Head powers and functions to an outsider under section 78(9) of the PS Act.

An ‘outsider’ defined in section 105 of the PS Regulations and section 69 of the Directions means a person other than:

  • an APS employee; or
  • a member of the Australian Defence Force; or
  • a person appointed to an office by the Governor-General, or by a Minister, under a law of the Commonwealth.

Requests to delegate Agency Head powers and functions to an outsider are considered by the Commissioner on a case-by-case basis.

Agencies seeking consent should provide the following details to the Australian Public Service Commission:

  • the nature of the relationship of the outsider with the Agency, (e.g. consultant, participant in exchange program, or person employed under other legislation)
  • the legislation or authority under which the person is engaged
  • the duties to be performed, and the powers to be delegated
  • the period for which the consent is required
  • whether supervision of APS employees is included in the duties
  • whether the arrangement (e.g. contract) requires the proposed delegate to have appropriate regard to the APS Values, Employment Principles, Code of Conduct and other relevant APS policy
  • the qualifications and experience of the ‘outsider’
  • any additional information to explain the need for the proposed delegation to an outsider.

Agencies need to ensure requests to the Commissioner are made from the Agency Head, as it is the Agency Head’s powers that will be delegated. In deciding to delegate powers and functions to outsiders, Agency Heads should also be cognisant of the fact that the outsider may not be bound by the APS Values and Code of Conduct and will not be subject to the same sanctions arising from a breach of the Code of Conduct, as APS employees.

Where an Agency Head requires the first delegate to delegate the Agency Head’s powers and functions to an outsider (second delegate) they will need to seek consent from the Commissioner.

Requests seeking the Commissioner’s consent should be sent to employmentpolicy@apsc.gov.au.

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