Australia: Who decides who decides? Delegation in local government in Western Australia

Last Updated: 29 May 2015
Article by Philip Mavor

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.

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

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions