As a body corporate a local government must necessarily perform its statutory functions and duties, and achieve its aims and objectives, through its officers, employees and agents.
A local government may do this by through authorisations, 'act through' its officers and employees, or by delegation.
A delegation is the conferral of the ability to exercise a power or duty to a person or body from a person or body that is vested with the responsibility to exercise that power or duty.
A power or duty delegated to a particular office does not cease to have effect merely because there is a change in the person acting in that office. A delegation follows the office.
The effect of s.59 of the Interpretation Act 1984 (WA)
Delegating a power does not transfer that power to the delegate, it merely replicates it. Council may therefore exercise any power or duty it has delegated to the CEO: s.59 Interpretation Act 1984.
However, caution needs to be exercised in relation to those matters where a delegate has already acted and exercised the delegated power or function.
When to delegate
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.
In general terms councils should be predominantly concerned with dealing with higher level policy matters. Duties and powers which are operational in nature, but exercise a discretion, should be delegated to the CEO.
Statutory power to delegate required
The ability to delegate a statutory function, right, or duty requires that a statutory power exist, and the power to delegate that power is contained in the legislation.
Any delegation of powers under a particular Act can only be delegated by the delegation provisions of that Act.
By way of example, s.48(1) of the Bushfires Act 1954 provides that a local government may delegate to its CEO the performance of any of its functions under that Act. It is surprising how many local governments incorrectly seek to delegate this power under s.5.42(1) of the Local Government Act 1995 (Local Government Act) instead of the Bushfire Act.
Delegation under the Local Government Act 1995
The local government regime provides that the council appoints the CEO, and the CEO appoints employees. All employees are responsible to the CEO, who in turn is responsible to the council.
There are extensive powers of delegation under the Local Government Act:
- Council to Committee delegation (s.5.16);
- Council to CEO delegation (s.5.42);
- CEO to employee delegation (s.5.44).
The Local Government Act prescribes what powers may, or may not, be delegated, and each delegation may be subject to conditions.
A council delegates a power or duty by resolution (absolute majority required). The CEO may delegate a power or duty in writing.
The particulars of the council resolutions, or CEO delegations in writing, making a delegation are important. If not done properly then the enforceability of decisions and actions may potentially be compromised.
The essential elements of a council resolution, or written delegation, are the correct and accurate identification of the:
- power or duty to be delegated;
- office to whom or which the power or duty is to be delegated;
- circumstances in which the power or duty can be exercised or discharged; and
- conditions on the exercise of the power or duty.
Council may not interfere with a delegation made by the CEO
The CEO's power to sub-delegate the exercise of a power or duty (delegated to the CEO by council) will be subject to any conditions imposed by council on its delegation to the CEO (s. 5.44(3) Local Government Act).
The council may not otherwise interfere with a valid delegation made by the CEO.
Section 5.44 of the Local Government Act permits the CEO to delegate to other employees the exercise of any of the CEO's powers or duties under the Act. As the Act has given the authority to the CEO, council has no authority to remove or alter delegations made by the CEO.
Register of delegations
The CEO is to keep a register of the delegations made to the CEO and to the employees. At least once every financial year each delegation is to be reviewed by the delegator: (s.5.46 Local Government Act).
Delegates to keep certain records
Where a power or duty has been delegated under the Local Government Act to the CEO or other local government employee, that person is to keep a written record of:
- how the person exercised the power or discharged the duty;
- when the person exercised the power or discharged the duty; and
- the persons or classes of persons, other than council or committee members or employees of the local government, directly affected by the exercise of the power or the discharge of the duty.
The requirement to record the prescribed information applies only to delegations made under the Local Government Act (s.5.46(3) Local Government Act).
A delegation may be revoked
A council may by resolution amend or revoke a delegation made by it (absolute majority required): s.5.45(1)(b).
The CEO may amend or revoke a delegation made by him or her in writing signed by the CEO: s.59(1)(e) Interpretation Act 1984.
The revocation of a delegation is not retrospective. Decisions made prior to the revocation by the delegate are valid.
If delegated power exceeded – decision may be quashed
A delegate may not be directed in the exercise of a delegated power or function but must decide for himself/herself the particular matter. However, the decision maker must act within the scope and conditions of the delegated power.
If the decision to be made exceeds the decision-maker's delegated power, then the matter must be referred back to the CEO or council as the case may be.
If a decision-maker makes a decision that exceeds his or her delegated power, then that decision, if challenged, (in the State Administrative Tribunal or the Supreme Court on appeal) may be found to be beyond power and the decision may be quashed.
By way of example, in a 2005 Supreme Court case the delegate's decision to approve a development was quashed since the floor levels were to be raised over 1.0 metre and this was outside the delegated authority. An increase in the floor level of over 1.0 metre had to be referred back to council.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
Kott Gunning is a proud member of