Developing and Managing Legislative Delegations and Authorisations

Version Number

3.3

Implementation Date

14/08/2014

Scope

Department-wide

Purpose

​To advise staff how to develop and maintain the delegation and authorisation of legislative powers conferred on Minister/s and the Director-General.

Delegations are written instruments that, in compliance with the Acts Interpretation Act 1954 and a specific statutory power of delegation, expressly delegate a specific statutory power of the chief executive / Minister to another officer (includes statutory authorisations). This does not include mere administrative authorisations or other administrative arrangements or policies that do not amount to a delegation of a statutory power but which authorise officers to perform tasks on the chief executive or Minister’s behalf.​​

Overview

Legislative Delegations and Authorisations enable the department to carry out its functions and to be accountable for decisions and actions taken under specific legislative provisions.

Ministers, as part of their portfolio, must administer various pieces of legislation allocated through the latest Administrative Arrangements Order.  Through this legislation a number of powers are conferred on the Minister/s and Chief Executive of this department which may, if the legislation permits, be delegated to a specific position within the department.  In some instances, the Minister or Chief Executive may decide not to delegate certain powers.

The department’s management of Legislative Delegations and Authorisations is crucial to the legitimacy of many of its decisions and actions undertaken.  It is important that Delegations and Authorisations are managed effectively to ensure decisions are validly made by a lawfully appointed delegate or authorised officer.  The department’s current delegations and authorisations are publically available on the Policy Instruments Framework – Authorisations and Delegations.

The Delegations Officer is the central point of contact for delegations within the department. The Delegations Officer will facilitate the review and approval process and maintain the DET Legislative Delegations Register of the delegations of the Minister’s and Chief Executive’s powers, including both current and previous delegations.  Legislative Authorisations should also be stored in this register. 

Legislation relevant to the department is assigned primary responsibility through the Legislative Compliance procedure to a division/unit to ensure compliance with each Act.  Responsible Areas must liaise with the Delegations Officer to ensure that appropriate Legislative Delegations and Authorisations are in place and kept up-to-date.

Responsibilities

Minister/s

  • Approve Instruments of Delegation and Authorisation relating to the powers conferred upon the Minister under legislation relevant to the department. 

Director-General

  • Approve Instruments of Delegation and Authorisation relating to the powers conferred upon the Chief Executive under legislation relevant to the department.

Associate Director-General, Deputy Director-General and Assistant Director-General

  • For legislation under their responsible area, recommend for approval positions in the department, held by “appropriately qualified persons”, to receive delegations or authorisations of powers conferred under legislation.

Delegates and Authorised Officers

  • Exercise their powers in accordance with:
    • legislative provisions that describe or specify the particular power being exercised
    • any conditions to which the delegation or authorisation is subject
    • legislative provisions regulating the delegation or authorisation of functions or powers
    • any other applicable law
    • relevant policies and procedures.

Responsible areas (divisions/units allocated responsibility for legislation under Legislative Compliance procedure)

  • Ensure the request for a delegation is endorsed by the relevant Associate Director-General, Deputy Director-General or Assistant Director-General.
  • Liaise with the Delegations Officer to develop and draft Delegations and Authorisations.
  • Ensure appropriate training is undertaken by delegates and persons authorised under legislation.
  • Ensure delegations and authorisations are communicated to and implemented across the relevant division and/or unit.

Delegations Officer

  • Is the central point of contact for Delegations and Authorisations for the department.
  • Liaises with Responsible Areas to review and update delegations and authorisations in accordance with this procedure.
  • Drafts new delegations and authorisations in liaison with Responsible Areas, the LALB and Legislation Services Unit.
  • Maintains a central register of all original instruments of delegation and authorisation and associated documentation.
  • Seeks appropriate approvals from the Delegator for the delegation to be made and executed.
  • Coordinates reports to the Minister/s on the exercise of delegated powers as required.

Legal and Administrative Law Branch

  • Provides legal advice to Responsible Areas and the Delegations Officer on drafting Delegations and Authorisations.
  • Recommends approval of Delegations and Authorisations.

Governance Strategy and Planning

  • Publishes the Instruments of Delegation and Authorisation on the Policy Instruments Framework.

Process

Reviews will occur when one or more of the following events occur:

  • machinery-of-government changes (e.g.  following an election)
  • amendments to legislation impacting current delegations or authorisations
  • restructure of the department or new positions created
  • 12 months has elapsed since:
    • an Instrument of Delegation or Authorisation was last approved by the delegator; or
    • the responsible area last completed a review of the Instrument.

Following an event, the Delegations Officer will initiate a review of:

  • all affected Instruments of Delegation to ensure current delegations reflect the current responsibilities of the department and/or positions within the department
  • all affected Instruments of Authorisation to ensure that persons authorised to exercise powers are still appropriate and that the office holder granting the authorisation is still currently the office holder.

The Delegations Officer, in consultation with the Responsible Area, will:

  • draft all delegations
  • ensure all delegations are in writing and signed by the delegator (i.e. the Minister or the Director-General). See Template for Instrument of Delegation Attachments 1 & 2
  • record in the Appendix attached to the Instrument of Delegation, all powers that are not delegated
  • draft delegations to revoke, where relevant, any previous delegations made under the same legislation
  • ensure delegations and authorisations are assigned to a specific position or positions
  • ensure delegations are reviewed by Legal and Administrative Law Branch prior to submission to the delegator for approval.
  • submit delegations to the delegator (Minister or Director-General) for approval
  • update the DET Legislative Delegations Register when Instruments of Delegation are approved
  • once approved, forward electronic copies of the Instruments of Delegation to ppr@det.qld.gov.au for registration on the Policy Instruments Framework
  • coordinate reporting to the Minister about the exercise of delegated powers as required
  • all legislative authorisations are managed in a similar manner to legislative delegations.

Responsible Areas must ensure that:

  • both the delegator and delegate are familiar with their responsibilities
  • a delegate has the necessary qualifications, experience or standing to exercise the delegated powers
  • effective performance management and accountability mechanisms are in place
  • appropriate internal audit, review and monitoring is undertaken
  • delegates receive relevant training.

Online Resources

Review Date

1/07/2014
Attribution CC BY

Administrative Arrangements Order
Sets out the principal responsibilities of Government Ministers and their portfolios.  Administrative Arrangements Orders are re-issued or amended when a change in the structure of government, known as machinery-of-government, takes place.

Administrative Authorisation
A legal mechanism where an individual or body confers upon a person an authority to do something on the authoriser’s behalf.  A person acting under an authorisation does so as an “agent” of the person in whom the power is vested.  For example, the chief executive cannot personally perform all the duties outlined upon their position under legislation, such as preparing an annual report for the department, so the chief executive will authorise certain departmental staff to undertake this work on her behalf. The work of these authorised officers remains work performed by the chief executive and is subject to the chief executive’s full control and direction.  The authorisation may be written or oral. It is not a delegation.

Delegation
An Act may enable an individual or body possessing legal powers to delegate any or all of those powers to another individual or body. The delegation must be in writing and signed by the delegator. Anything done by the delegate under the delegation is taken to have been done by the delegator. An example is where an Act of Parliament/Regulation states that the Minister or Chief Executive Officer may exercise a power.  An Instrument of Delegation would be signed by the Minister or Chief Executive if she/he decided to delegate the power.

DET Legislative Delegations Register
A central register developed and maintained by the Delegations Officer to ensure that all legislative delegations and authorisations are accurately stored and available to the public. 

Policy Instruments Framework

A centralised directory and register for all of the department’s policy instruments on the DET website including Commonwealth legislation and legislative instruments, Queensland Acts of Parliament and subordinate legislation, Policy (Commonwealth and Queensland Government), Directives, Standards, Legislative Delegations, Legislative Authorisations, Guidelines and Supporting documentation relating to the education and training portfolio.

Power
Includes doing an act or making a decision for the purpose of performing a function.

Responsible Area
The division or unit within the department with the primary responsibility for ensuring compliance with each piece of legislation, as tabled in the Schedules attached to Legislative Compliance.

Statutory Authorisation
Some laws, for example s.178 of the Education (General Provisions) Act 2006 require certain tasks to be performed only by ‘authorised’ officers. The section defines ‘Authorised officer’ to be the chief executive or an officer of the department authorised by the chief executive for the section. The persons authorised by the chief executive to be authorised officers then act as agents of the chief executive. Statutory authorisations, like delegations, must be evidenced in writing.