In-House Memorandum
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Local Government Powers of Delegation
Government, officials and Ministers can delegate their powers, but must be careful not to overstep the mark. Delegation powers differ between local and state government and this memo broadly describes each different sector.
Local Government
Under Section 98,
Local Government Act 1989 (Vic), a Council may delegate to a member of its staff any power, duty or function of a Council or any other act other than:
- the power of delegation itself;
- the power to declare a rate or charge;
- the power to borrow money;
- the power to approve any expenditure not contained in a budget approved by the Council;
- any power, duty or function of the Council under section 223; and
- any prescribed power.
In the town planning context, planning and responsible authorities are permitted to delegate most of their powers with the exception of holding land and entering into agreements
[1].
For a valid delegation to occur, Council must delegate its powers by an instrument of delegation (s98(1)). A validly delegated and executed power, duty or function will lead to a valid decision.
If an officer acts according to an invalid instrument of delegation, or outside the scope of a valid instrument of delegation, his or her actions are
ultra vires[2] and any decision made consequent to that may be invalid.
State and Federal Government
Ministers and government bodies may delegate many of their powers and functions, either where legislation expressly provides for a power or function to be delegated, such as any of the Victorian Minister for Planning’s powers under the
Planning and Environment Act 1987 (Vic) or the Commonwealth Minister for Immigration’s powers under the
Migration Act 1958 (Cth), or where there is an implied power to authorise another person to exercise a particular power or function. In Victoria, the Public Administration Act 2004 (Vic) provides that the head of a public service body may delegate, by instrument, to any person, persons or body any of his or her functions under the Act, including any function delegated to him or her under that Act
[3]. Similar powers are provided to Ministers and the Premier
[4]. The definition of a ‘public service body’ includes an ‘administrative office’, defined to include any departmental body or group created by the Governor in Council
[5].
Conclusion
Exercise of a power beyond the Instrument of Delegation can create serious legal issues for a public authority and needs to be carefully avoided. Persons affected by a decision made under delegation if in any doubt should obtain the Instrument of Delegation to ensure that government officials have not taken to themselves powers that rightly belong to elected officials or more senior officers.
Liability limited by a scheme approved under Professional Standards Legislation
This fact sheet is intended only to provide a summary and general overview on matters of interest. It does not constitute legal advice. You should always seek legal and other professional advice which takes account of your individual circumstances.
[1] Section 188, Planning and Environment Act 1989 (Vic).
[2] In English: ‘beyond power’
[3] Section 18, Public Administration Act 2004 (Vic)
[4] Section 109, Public Administration Act 2004 (Vic)
[5] Section 11, Public Administration Act 2004 (Vic)
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