This guideline has been developed in response to enquiries from local governments regarding the nature of delegations, how to go about determining whether to use delegations and other related matters.
Within the context of government administration and administrative law, this guideline:
This guideline also contains a listing of various powers and duties in the Local Government Act 1995 and its associated regulations, and identifies powers and duties capable of delegation and to whom.
The Macquarie Dictionary Second Edition (1991), The Macquarie Library Pty Ltd, Macquarie University, New South Wales (Australia), p. 469, defines ‘delegate’ as follows:
The Oxford Shorter English Dictionary Third Edition (1978), Oxford University Press, Oxford (England), p. 511, defines ‘delegate’ as follows:
Justice Wills in Huth v Clarke (1890) 25 QBD 391, at 395 stated:
‘Delegation, as the word is generally used, does not imply a parting with powers by the person who grants the delegation, but points rather to a conferring of an authority to do things which otherwise the person would have to do himself…
[It] is never used by legal writers…as implying that the delegating person parts with his power in such a manner as to denude himself of his rights…[The] word ‘delegate’ means little more than an agent”
The definitions and judicial commentary above illustrate that:
Delegations are most commonly used in organisations where:
Whilst there is a requirement for local government delegations to be authorised by statute (as is explained in section 6 of these guidelines), there is no limitation (unless expressly stated to the contrary by statute) on appointing a person to act on
behalf of the local government or the CEO, provided that appointment does not include the power of delegation (see section 15 of these guidelines for details).
There is a legal distinction between:
In most circumstances, where a person:
Please see section 4 of these guidelines which explain the concept of ‘acting through’. Section 3 of this guideline has illustrated that when determining whether an appointment is a delegation or simply an appointment to act on behalf of another
person, it is critical to consider whether or not the person is appointed to exercise a broad discretion to exercise a power or discharge a duty.
In addition to covering delegations, the Local Government Act 1995 introduces the concept of ‘acting through’. Section 5.45 of the Act states that in relation to delegations, nothing prevents a ‘local government from performing any of
its functions by acting through a person other than the CEO’ or ‘a CEO from performing any of his or her functions by acting through another person’. The Act does not specifically define the meaning of the term ‘acting through’.
However, the key difference between a delegation and ‘acting through’ is that a delegate exercises the delegated decision making function in his or her own right. The principal issue is that where a person has no discretion in carrying
out a function, then that function may be undertaken through the ‘acting through’ concept. Alternatively, where the decision allows for discretion on the part of the decision maker, then that function needs to be delegated for another
person to have that authority.
For administrative purposes, a person may sign a letter in his or her name on behalf of the CEO while, with delegated powers, the person would sign a letter in his or her own name, in accordance with the delegated authority.
An appropriate method for a council of a local government to make a decision which will be implemented by its officers, is for it to make a policy about particular functions that it performs. In that case there is no need for a delegation as it will be
the role of the organisation to implement those policy decisions.
It is critical in understanding the types of functions that are appropriate for ‘acting through’ another person in preference to delegation. This can be demonstrated through the following example. In this case, the Council gives the CEO the
power to call tenders subject to certain cost parameters. If that power is delegated, the CEO could call tenders if the CEO believed the cost parameters had been satisfied (even if the Council’s opinion was different to the CEO’s opinion).
However, under an ‘acting through’ arrangement, the CEO could only call tenders if the Council was satisfied about the cost parameters.
There are several advantages in using ‘acting through’ rather than delegation which include:
The legislation authorising the delegation of certain local government powers or duties and requiring records to be maintained in respect of such delegations, includes the:
The provisions of the Local Government Act 1995 which provide for delegations by a local government or its CEO are as follows:
The Act has been framed in a way that determines whether powers and duties can be delegated or not. If the term ‘council’ is used then it is the council itself which must carry out that function. If the term ‘local government’
is used then it may be possible to use delegation, subject to any other express powers against delegation or the desirability in using ‘acting through’ where it may be a better way of carrying out the power or duty.
Section 2 of the Local Government (Miscellaneous Provisions) Act 1960 effectively incorporates the provisions of that Act into the Local Government Act 1995, and therefore the delegation provisions of the Local Government Act 1995 apply to the Local Government
(Miscellaneous Provisions) Act 1960.
Section 2 states that:
‘The Local Government Act 1995 applies as if the provisions of this Act were in that Act but in construing the provisions of this Act account is to be taken of the meanings they had before the Local Government Act 1995 commenced.’
In addition to the delegation powers of the Local Government Act 1995 which apply to the Local Government (Miscellaneous Provisions) Act 1960, section 374(1b) of the Local Government (Miscellaneous Provisions) Act 1960 provides for a local government
to delegate the authority to approve certain plans to its building surveyor, stating that:
‘The authority to approve or refuse to approve plans and specifications submitted under [section 374] may be delegated by a local government to a person appointed to the office of building surveyor....’
Reference also needs to be made to section 23 of the Strata Titles Act 1985 which provides for particular delegations to employees.
Section 48 of the Bush Fires Act 1954 provides for a local government to delegate powers to its CEO, stating that:
‘A local government may, in writing, delegate to its chief executive officer the performance of any of its functions under this Act.
The Planning and Development Act 2005 provides for a system through the Model Scheme Text as a set of general provisions for carrying out the general objects of town planning schemes.
Item 11.3.1 of the Model Scheme Text provides for a local government to delegate powers to a committee or its CEO, stating that:
‘The local government may…delegate to a committee or the CEO…the exercise of any of its powers or the discharge of any of its duties under the Scheme, other than this power of delegation.’
Item 11.3.2 of the Model Scheme Text provides for a local government CEO to delegate their powers and duties to another employee, stating that:
‘The CEO may delegate to any employee of the local government the exercise of any of the CEO’s powers or the discharge of any of the CEO’s duties under clause 11.3.1.
Some local governments have mistakenly attempted to use the legislative powers of delegation contained in one Act to delegate a power or duty contained in another Act.
Unless expressly stated to the contrary, a legislative power to delegate only relates to the powers or duties under the Act in which the delegation power is located.
It is not possible to, for example, rely on section 5.42(1) of the Local Government Act 1995 to delegate any of a local government’s powers under the Bush Fires Act 1954 to a CEO. Any delegation by a local government of its powers under the Bush
Fires Act 1954 can only be delegated by the delegation provisions of that Act.
Notwithstanding that only some of the relevant legislation expressly prohibits subdelegation, the common law prohibits subdelegation unless it is expressly provided for by legislation.
For the avoidance of doubt, an example of sub-delegation is where person A is delegated to exercise a power and they attempt to delegate to person B to exercise the power which was originally delegated to person A.
Another example is the Bush Fires Act 1954. Unlike the Local Government Act 1995, the Bush Fires Act 1954 does not provide for a CEO to delegate to another employee to exercise the powers delegated by council to the CEO under section 48 of that Act. Therefore,
only the CEO may exercise the powers delegated by council to the CEO under that Act.
There are limitations on all of the above legislative provisions which provide for the delegation of powers and duties.
Many of the limitations relate to subdelegation. Other limitations include whether the delegation must be in writing, what types of powers and duties can be delegated and what type of majority decision is required to delegate a power or duty.
Not all of the limitations can be addressed in this operational guideline, due to their number and detail. However, the majority of the limitation provisions are located close to the provisions which provide for the delegations.
As the Local Government Act 1995 is the Act under which most delegations will be made by local government, this guideline will discuss the limitations on delegations contained within that Act.
Section 5.17 of the Local Government Act 1995 provides limitations on what powers and duties a local government can delegate to its committees. Section 5.17(1) limits the powers and duties which can be delegated to committees, according to the types of
members which constitute the committees for example:
Section 5.17(2) prohibits absolutely the delegation of any powers or duties to committees comprised of only persons other than local government council members or employees.
Sections 5.43(a) to 5.43(h) of the Local Government Act 1995 provide limitations on what powers and duties a local government can delegate to its CEO, stating that:
‘A local government cannot delegate to a CEO any of the following powers or duties:
Section 5.43(i) of the Act provides for regulations to prescribe further powers or duties which cannot be delegated to the CEO.
The following regulations prescribe powers and duties which cannot be delegated to a CEO:
Section 5.44(1) of the Local Government Act 1995 provides for the CEO to make delegations to other employees.
The obvious main limitation of section 5.44(1) is that it expressly prohibits any sub-delegation of the power to delegate. This means that once the CEO has delegated a power or duty to an employee or employees, that power or duty cannot be on-delegated
to other employees.
Just as a delegation to a CEO by a council may be done with conditions attached, when delegating to another employee a CEO may attach conditions to the delegation, provided that the CEO does not purport to delegate more powers or duties to the other employee
than were delegated to the CEO.
Section 59 of the Interpretation Act 1984 explains the particular elements of the power to delegate when it appears in various Acts. It states:
‘Construction of Power to Delegate
It is important to be aware that under these provisions, the delegator retains the power to make decisions if need be, despite the fact that a delegation has occurred.
Also, in situations when a number of people occupy a particular office throughout either the day or week (eg ranger officers), a delegation by office enables an employee who occupies that office for the time being, to exercise the powers and duties delegated
to that office.
A delegation by office will also enable an employee who temporarily occupies an office, say in an acting role whilst the normal occupier of the office is sick, to efficiently exercise the powers and duties delegated to that office, without the need to
go through the delegation process again. Care needs to be taken in ensuring that the person has the appropriate qualifications where required.
When delegating by office, it is essential to ensure that the office described is a distinctly identifiable office (for example Manager, Corporate Services).
The major requirements to keep records of delegations to committees, CEOs and other employees are contained in sections 5.18 and 5.46 of the Local Government Act 1995.
In relation to delegations to committees, section 5.18 states that:
‘A local government is to keep a register of the delegations made [to committees] under this Division and review the delegations at least once every financial year.’ In relation to delegations to CEOs and other employees, section 5.46 states
The registers of delegations to committees and CEOs should include a copy of the minutes which record the delegation (and any conditions) and can be kept in an electronic or paper format. In the case of a delegation from the CEO to an officer the register
should also contain a copy of the memorandum of delegation.
Obligations are imposed on the recipients of delegated powers and duties. Under section 5.46 of the Local Government Act 1995, regulation 19 of the Local Government (Administration) Regulations 1996 requires delegates to keep a record of each occasion
on which they exercise the powers or discharge the duties delegated to them, stating that:
‘Where a power or duty has been delegated under the Act to the CEO or to any other local government employee, the person to whom the power or duty has been delegated is to keep a written record of:
This provision does not necessarily require the keeping of a register and other efficient record keeping practices would be sufficient. However, it is recommended that such systems provide for accessible accountability of the performance of these tasks.
Part 5 Division 6 of the Local Government Act 1995 (disclosure of financial interests) also applies to delegates of powers and duties.
Section 5.71 states that:
If, under Division 4, an employee has been delegated a power or duty relating to a matter and the employee has an interest in the matter, the employee must not exercise the power or discharge the duty and:
Penalty: $10,000 or imprisonment for 2 years.
In circumstances where the employee is carrying out a delegated function and the matter relates to his or her own projects, then another officer will need to have the authority to deal with the matter. In addition to the prohibition on delegates exercising
the powers or performing the duties delegated to them, sections 5.75 and 5.76 of the Local Government Act 1995 require employees who have been delegated powers or duties to lodge primary and annual returns. Sections 5.75 and 5.76 state:
5.75 Primary Returns
5.76 Annual returns
Penalty applicable to subsections (1) and (2): $10,000 or imprisonment for 2 years.
‘Relevant person’ includes a ‘designated employee’ who has been delegated a power or duty.
Section 5.78 of the Local Government Act 1995 prescribes the information which must be included in the primary and annual returns.
Where an officer acts temporarily in a position with delegated power, that person will need to complete a financial interest return unless they have only acted in that position for less than 3 months.
Determining What Should Be Delegated A decision to delegate a power or duty should be made by local governments only after thorough consideration of whether the delegation will facilitate the effective operation of the local government. This will therefore
depend on the particular circumstances of each local government.
A local government council is unable to deal with all of the numerous issues and duties concerning its local government. As far as is possible and reasonable, councils should be predominantly concerned with dealing with higher level policy matters for
their local governments.
Duties and powers which are operational in nature, but exercise a discretion should be delegated to the CEO.
Powers and duties can be delegated to CEOs with comprehensive conditions attached. The conditions limit the exercise of powers or discharge of duties to circumstances prescribed by the council. For example, a permit application which does not satisfy
the conditions attached to a delegation, must be referred to the council for determination.
The Local Laws Manual (2005), Local Laws WA, Western Australian Local Government Association, Western Australia (Australia) at Section 2, page 10, provides a useful example of a recommendation to council for the delegation of certain powers with conditions
attached, as follows:
‘That the administration of this Local Law including any enforcement action and collection of the annual licence fee be delegated to the CEO, but that the exercise of the following powers be reserved to the Council:
Delegations with conditions are also frequently made in relation to employees other than the CEO for acquiring assets on behalf of a local government. An example is where the CEO delegates an employee with the power to purchase goods and services to a
value of $10,000 - any proposed purchases which would exceed this limit would need to be referred to the CEO for approval.
Many local laws provide for the appointment of employees as ‘authorised persons’ for the purpose of the relevant local law. Once an employee is appointed as an ‘authorised person’, it is not necessary for the CEO or council to
delegate any powers to that employee in order for that employee to, say, enforce the relevant local law
It is important to again note the difference between a delegation of a power or duty and the implementation of a council or CEO decision – see section 4 of this guideline in relation to ‘acting through’.
An example of carrying out a council decision (compared to exercising a delegated power or duty) is where a council approves an annual budget which includes the expenditure of $40,000 for particular road maintenance to be carried out by employees. Employees
do not need to be delegated the power to carry out their operational functions.
In the example above, if the relevant employees believe it is necessary to spend more funds than approved in the budget, they must refer that matter to the council for its approval – the adoption of an annual budget can only be done by an absolute
majority of council, which under section 5.43(a) of the Local Government Act 1995 cannot be delegated to the CEO or any other employee.
The principal consideration for a local government when deciding if it should delegate a power or duty, is whether the delegation will improve the efficiency of the local government’s operations whilst ensuring that its policies are consistently
implemented. See the attached schedule which lists those items where acting through would be a suitable mechanism for achieving that efficiency. Local governments also need to consider the content of their local laws and whether delegation may be
necessary, in some circumstances. However, ‘authorised persons’ can normally carry out the ‘policing’ powers in local laws.
Section 19 of this guideline considers how a local government can determine whether it should delegate particular powers and duties. This part considers the procedure for council to make a delegation.
When CEOs identify a duty or power of the local government which can be delegated and they believe that if it is delegated it will provide better efficiency, they should put the proposed delegation to their council, for approval.
As the earlier example from the Local Laws Manual (in section 19) demonstrates, a recommendation to council for a delegation is relatively straightforward. The essential elements of a delegation recommendation are:
It is important to note again that all delegations by council require an absolute majority decision.
Once a delegation has been made by council, the delegation must be recorded in the delegation register.
Under regulation 19 of the Local Government (Administration) Regulations 1996, the delegate must keep written records of when and how they exercise the delegated power or discharge the delegated duty, and the persons or classes of persons affected by
the exercise of the power or discharge of the duty.
Similarly to delegations by councils, delegations by CEOs must accurately and correctly identify all elements of the delegation.
Employee proposals for delegations (for themselves or for other employees) should be provided to the CEO. The recommendations should be in a format similar to the recommendations for delegations by councils.
As with delegations by council, written records of delegations by the CEO must be kept in the delegations register and delegates must keep records of their exercise of delegated powers or discharge of delegated duties.
The attached schedule lists the powers and duties under the Local Government Act 1995 (with associated regulations) which cannot be delegated, those that can be delegated, and to whom the powers and duties can be delegated. It also lists those matters
where ‘acting through’ may be the most practical way of carrying out those functions.
It is not suggested that all of the powers and duties which can be delegated should be delegated – the schedule is provided only as an indication of what can be delegated if it is appropriate for a particular local government.
Section 3.25(1) of the Local Government Act 1995 provides for a local government to provide notice to a person requiring that person to do certain things in relation to land, stating that:
‘A local government may give a person who is the owner … of land a notice in writing relating to the land requiring the person to do anything specified in the notice that:
If a council determines that the efficiency of its local government operations will be improved if its CEO is delegated to exercise the powers under section 3.25(1), the council may so delegate to the CEO either with or without any conditions.
The following is an example of a recommendation for such a delegation:
‘That, under section 5.42 of the Local Government Act 1995, the Chief Executive Officer be delegated to exercise the powers under section 3.25(1) of the Local Government Act 1995.’
As with all delegations by council:
For reasons of policy and/or to maintain uniformity, it may be inappropriate for a CEO to delegate to other employees to exercise any section 3.25(1) powers which have been delegated to the CEO. However, other employees can be appointed to carry out a
CEO’s exercise of powers delegated to the CEO, without those other employees needing to be delegated.
By way of example, in times when a cyclone is approaching a district, if the CEO is delegated to exercise section 3.25(1) powers, the CEO may decide that certain items must be tied down to prevent them from causing a hazard when the cyclone hits the district,
and that section 3.25(1) notices must be issued in relation to those items. Once the CEO has decided this, the CEO may then appoint any number of employees to survey the district and, when they identify items which the CEO has decided must be tied
down, complete the section 3.25(1) notices and issue them to the relevant person, on behalf of the CEO.
Section 3.57(1) of the Local Government Act 1995 states that:
‘A local government is required to invite tenders before it enters into a contract of a prescribed kind under which another person is to supply goods or services.’
Section 5.43 of that Act states that:
Part 4 of the Local Government (Functions and General) Regulations 1996 regulates and provides the procedures for local government tenders for providing goods or services.
A council may delegate to its CEO to invite tenders under section 3.57 of the Local Government Act 1995 and Part 4 of the Local Government (Functions and General) Regulations 1996, without the necessity of setting a maximum limit on the tenders which
the CEO may invite.
However, the effect of section 5.43(b) is that if a council wishes to delegate to its CEO to accept tenders under section 3.57 of the Local Government Act 1995 and Part 4 of the Local Government (Functions and General) Regulations 1996, it may attach
a condition to the delegation that specifies the maximum limit of the tenders which the CEO may accept.
Following is an example of a recommendation to council to delegate to its CEO to invite any tenders (in accordance with council’s selection criteria) and accept tenders up to a limit of $200,000 under section 3.57 of the Local Government Act 1995
and Part 4 of the Local Government (Functions and General) Regulations 1996:
‘That, under section 5.42 of the Local Government Act 1995, the Chief Executive Officer be delegated to:
(Refer to each section of the Act or Regulations for the full details of each power or duty to be exercised by the local government).
Do not submit enquiries with this form.