1. Delegations
A presentation to the LGMA Corporate Planning & Governance Village by
Tim Fynes-Clinton
Partner
King & Company Solicitors

2. King & Company Effective.Practical.Proven.
Based in Brisbane
18 lawyers + 2 paralegals + 11 support staff
Local government is more than 90% of our business: -
Planning & environment
Contract, commercial & advisory
Dispute resolution and defence of public liability and professional indemnity claims
Significant clients: LGAQ, Isaac Regional Council, Gold Coast City Council, Central Highlands Regional Council, JLT (as manager of LGM Queensland)

3. Overview Why do we need delegations To whom can a Council delegate
Some essential rules about delegation
How do we do it
Delegation -v- Authorised Persons
Delegation by exception

4. Why do we need delegations?
Over 200 Acts and Regulations which the State government has either devolved or delegated to local government to administer and/or enforce.
On most occasions, the requirement is imposed on the “local government” to take action.
Absent delegation, a Council resolution would be required prior to taking the required action. (e.g. registering a dog, as required by the Animal Management (Cats and Dogs) Act)

5. Why do we need delegations? (continued)
In mid 2011, the LGAQ & King & Company identified the 59 “most common” Acts and Regulations that Councils are required to administer and enforce.
Produced template registers for each of the these Acts and Regulations
Specifically: -
Template Council to CEO registers; and
Template CEO to employee or contractor registers

6. Why do we need delegations? (continued)
Requirement (from 12 December 2012) to review delegations
Local Government Act, section 257(4): -
“A delegation to the chief executive officer must be reviewed annually”.

7. Why do we need delegations? (continued)
Requirement to keep a register of delegations - Local Government Act 2009, section 260(4): -
“(1) The chief executive officer must establish a register of delegations that contains the particulars prescribed under a regulation.
(2) The chief executive officer must record all delegations by the local government, mayor or the chief executive officer in the register of delegations.
(3) The public may inspect the register of delegations.”

8. Why do we need delegations? (continued)
Local Government Regulation 2012, section 305: -
“(1) For section 260(1) of the Act, the particulars prescribed for a register of delegations are—
(a) the name or title of the person, or the name of the committee, to whom powers are delegated; and
(b) a description of the powers delegated, including the provisions under a Local Government Act permitting or requiring the exercise of the powers; and

9. Why do we need delegations? (continued)
Local Government Regulation 2012, section 305 (continued): -
“(1) For section 260(1) of the Act, the particulars prescribed for a register of delegations are (continued)—
(c) if the delegation was by the local government—a summary of the resolution by which powers are delegated, including—
(i) the date of the resolution; and
(ii) a summary of any conditions to which the delegation is subject; and
(iii) if the resolution is numbered—its number.

10. Why do we need delegations? (continued)
Local Government Regulation 2012, section 305 (continued): -
(2) The chief executive officer may include any other information in the register the chief executive officer considers appropriate.”

11. To whom can the Council delegate?
Local Government Act 2009, section 257(1)
(a) the mayor; or
(b) the chief executive officer; or
(c) a standing committee, or joint standing committee, of the local government; or
(d) the chairperson of a standing committee, or joint standing committee, of the local government; or
(e) another local government, for the purposes of a joint government activity.

12. Some essential rules about delegation
Council cannot delegate a power that an Act states must be exercised by resolution – Local Government Act, section 257(2)
Examples: -
“A local government makes a local law by passing a resolution to make the local law.” – Act, section 29(2)
“A local government must decide, by resolution at the local government’s budget meeting for a financial year, what rates and charges are to be levied for that financial year.” - Act, section 94(2)

13. Some essential rules about delegation (continued)
Examples of matters that must be decided by resolution (continued): -
“A local government must, by resolution, adopt an organisational structure that is appropriate to the performance of the local government’s responsibilities.” – Act, section 196(1)
Selling land for overdue rates – “The local government may, by resolution, decide to sell the land.” – Local Government Regulation 2012, section 140(2)

14. Some essential rules about delegation (continued)
Council cannot delegate a power that an Act states must be exercised by resolution – Local Government Act, section 257(2) (continued)
This rule also applies in relation to “adopt”.
Schedule 4 of the Act defines “adopt” as follows: -
“adopt”, by a local government, means adopt by resolution of the local government.”

15. Some essential rules about delegation (continued)
Adopt = adopt by resolution
Examples: -
“A local government must adopt its budget for a financial year— ...” - Local Government Regulation 2012, section 170(1)
“A local government must prepare and adopt an annual operational plan for each financial year.” - Local Government Regulation 2012, section 174(1)
“A local government must adopt an expenses reimbursement policy.” - Local Government Regulation 2012, section 250(1)

16. Some essential rules about delegation (continued)
Acts Interpretation Act, section 27A
(1) If an Act authorises a person or body to delegate a function or power, the person or body may, in accordance with the Act and any other applicable law, delegate the function or power to—
(a) a person or body by name; or
(b) a specified officer, or the holder of a specified office, by reference to the title of the office concerned.

17. Some essential rules about delegation (continued)
Acts Interpretation Act, section 27A (continued)
(2) The delegation may be—
(a) general or limited; and
(b) made from time to time; and
(c) revoked, wholly or partly, by the delegator.
(3) The delegation, or a revocation of the delegation, must be in, or evidenced by, writing signed by the delegator or, if the delegator is a body, by a person authorised by the body for the purpose.

18. Some essential rules about delegation (continued)
Acts Interpretation Act, section 27A(3) – “The delegation ... must be in, or evidenced by, writing signed by the delegator...”
What is writing?
Acts Interpretation Act , Schedule 1 (“Meaning of commonly used words and expressions”): -
“writing includes any mode of representing or reproducing words in a visible form.”

19. Some essential rules about delegation (continued)
Acts Interpretation Act, section 27A (continued)
(3A) If the delegator is a body, the delegation may be made or revoked by a resolution of the body.
(3B) All conditions and preliminary steps required for the exercise of a delegation are presumed to have been satisfied and performed unless the contrary is established.

20. Some essential rules about delegation (continued)
Acts Interpretation Act, section 27A (continued)
(3C) Laws apply to the delegate, and to other persons in relationship to the delegate, in the performance of the delegated function or in the exercise of a delegated power as if the delegate were the delegator.
(3D) Anything done by or in relation to the delegate in relation to the delegation is taken to have been done by or in relation to the delegator.

21. Some essential rules about delegation (continued)
Acts Interpretation Act, section 27A (continued)
(4) A delegated function or power may be exercised only in accordance with any conditions to which the delegation is subject.
(5) The delegate may, in the performance of a delegated function or in the exercise of a delegated power, do anything that is incidental to the delegated function or power.

22. Some essential rules about delegation (continued)
Acts Interpretation Act, section 27A (continued)
(6) A delegated function or power that purports to have been performed or exercised by the delegate is taken to have been properly performed or exercised by the delegate unless the contrary is proved.
(7) A delegated function or power that is properly performed or exercised by the delegate is taken to have been performed or exercised by the delegator.

23. Some essential rules about delegation (continued)
Acts Interpretation Act, section 27A (continued)
(8) If, when performed or exercised by the delegator, a function or power is dependent on the delegator’s opinion, belief or state of mind, then, when performed or exercised by the delegate, the function or power is dependent on the delegate’s opinion, belief or state of mind.

24. Some essential rules about delegation (continued)
Acts Interpretation Act, section 27A (continued)
(8A) If—
(a) the delegator is a specified officer or the holder of a specified office; and
(b) the person who was the specified officer or holder of the specified office when the delegation was made ceases to be the officer or holder of the office;

25. Some essential rules about delegation (continued)
Acts Interpretation Act, section 27A (continued)
(8A) (continued)
then—
(c) the delegation continues in force; and
(d) the person for the time being occupying or acting in the office concerned is taken to be the delegator for the purposes of this section.

26. Some essential rules about delegation (continued)
Acts Interpretation Act, section 27A (continued)
(8B) If—
(a) the delegator is a body; and
(b) there is a change in the membership of the body;
then—
(c) the delegation continues in force; and
(d) the body as constituted for the time being is taken to be the delegator for the purposes of this section.

27. Some essential rules about delegation (continued)
Acts Interpretation Act, section 27A (continued)
(9) If a function or power is delegated to a specified officer or the holder of a specified office—
(a) the delegation does not cease to have effect merely because the person who was the specified officer or the holder of the specified office when the function or power was delegated ceases to be the officer or the holder of the office; and

28. Some essential rules about delegation (continued)
Acts Interpretation Act, section 27A (continued)
(9) (continued)
(b) the function or power may be performed or exercised by the person for the time being occupying or acting in the office concerned.
(10) A function or power that has been delegated may, despite the delegation, be performed or exercised by the delegator.

29. Some essential rules about delegation (continued)
Acts Interpretation Act, section 27A (continued)
(10A) The delegation of a function or power does not relieve the delegator of the delegator’s obligation to ensure that the function or power is properly performed or exercised.

30. Some essential rules about delegation (continued)
Acts Interpretation Act, section 27A (continued)
(11) Subject to subsection (12), this section applies to a subdelegation of a function or power in the same way as it applies to a delegation of a function or power.
(12) If an Act authorises the delegation of a function or power, the function or power may be subdelegated only if the Act expressly authorises the function or power to be subdelegated.

31. Some essential rules about delegation (continued)
Local Government Act, section 259 – Delegation by CEO
(1) A chief executive officer may delegate the chief executive officer’s powers to an appropriately qualified employee or contractor of the local government.
(2) However, the chief executive officer must not delegate the following powers—
(a) a power delegated by the local government, if the local government has directed the chief executive officer not to further delegate the power;
(b) a power to keep a register of interests.

32. Some essential rules about delegation (continued)
Local Government Act, section 258 – Delegation by Mayor
(1) A mayor may delegate the mayor’s powers to another councillor of the local government.
(2) However, the mayor must not delegate the power to give directions to the chief executive officer or senior executive employees.

33. Some essential rules about delegation (continued)
What are the powers of the Mayor that can be delegated?
Examples: -
Prepare the budget (Act, sections 12(4)(b) and 107A)
Represent the Council at civic and ceremonial functions (Act, section 12(4)(h))
Deal with complaints of alleged inappropriate conduct by other councillors, other than the Deputy Mayor (Act, section 181)

34. How do we do it
Each template register containing powers relevant to your Council’s functions needs to be carefully examined.
If a power which may be exercised by Council is excluded from the register then Council alone (not the CEO of Council) may exercise the relevant power.
Similarly, if a power may be exercised by the CEO, but is not included in the CEO Register, then the CEO alone (not an employee or contractor of Council) must exercise the relevant power.

35. How do we do it (continued)
Council may only delegate a power by resolution – Act, section 257.
Accordingly, once that part of the Register comprising the proposed Council to CEO delegations is in a form which is satisfactory to Council, a report must be presented to Council (which makes reference to all of the powers which are proposed to be delegated by Council to the CEO) and Council must formally resolve to delegate to the CEO all powers mentioned in the report.

36. How do we do it (continued)
The CEO has his or her own power of delegation – Act, section 259
The CEO may only delegate a power to an appropriately qualified employee or contractor of Council.
Schedule 4 to the Act defines contractor: -
“contractor, of a local government, means:-
(a) a person who provides services under a contract with the local government; or
(b) a person prescribed under a regulation.”

37. Delegation -v- Authorised Persons
The Local Government Act 2009 (and various other pieces of State legislation) provide for the appointment of authorised persons/officers/inspectors, for example: -
Local Government Act 2009, section 202(1) empowers the CEO to appoint authorised persons
If the legislation empowers the authorised person to take action, no delegation of the power in question is required, for example: -
Local Government Act 2009, section 134A(1) empowers an authorised person to enter a property to inspect a regulated pool.

38. Delegation by exception
“Council delegates to the CEO all the powers of a local government specified in the Local Government Act 2009, other than: - (a) the powers required by the Local Government Act to be exercised by resolution; and (b) the following powers: - (i) ...”.

39. Delegation by exception (continued)
Is there any benefit to be served by this example?
Arguably not - delegating (by exception) does not relieve your Council of the task imposed by section 305 of the Regulation of fully particularising the description of the powers delegated, including: -
“... the provisions under a Local Government Act permitting or requiring the exercise of the powers ...”
and
“... if the delegation was by the local government—a summary of the resolution by which powers are delegated, including—
(i) the date of the resolution; and
(ii) a summary of any conditions to which the delegation is subject; and
(iii) if the resolution is numbered—its number.”

40. Delegation by exception (continued)
Is there another alternative?
“257AA Delegation of local government powers to chief executive officer
(1) Subject to subsection (2), all powers of a local government under this Act or another Act are delegated to the chief executive officer.
(2) Subsection (1) does not apply to: -
(a) a power that an Act states must be exercised by resolution; or
(b) a power that the local government has determined, by resolution, must be exercised by resolution of the local government.”

41. Time for questions/discussion/ideas?
The End The beginning
Time for questions/discussion/ideas?