#7242 - Judicial Review Grounds Ii

Legislation conferring power invariably nominates one to exercise it (minister, secretary etc.) and the validity of the decision can hinge on whether it was made by the person such nominated
- Note: delegates non potest delegare - a delegate cannot delegate
But in reality governments can seldom practically make all decisions and hence legislation authorizes for the power to delegate – but even this is unlikely to cope with all situations and sometimes the authorized decision-maker mightn’t be available but there is a pressing need for a decision to be made
- But there is the competing risk on public law ideals: the more dispersed a power the harder it is to ensure consistency and central managerial and political control
These competing considerations are resolved with four categories of authorized decision-making
- Principal – The person nominated by legislation – retains the authority even if delegated, Acts Int Act s34AB(d)
- Delegate – the person/officer to whom the power is delegated by written instrument signed by the principal, pursuant to an authority conferred by legislation. The scope of his power need not match that of the principal – but he acts independently and cannot act at the behest of another (just like the principal). The delegate is expected to sign in his name and not that of the principal
- Agent – In limited circumstances acts on the principal/delegate’s behalf; generally must be a matter of ‘practical administrative necessity’ (Re Reference). The arrangement need not be established in formal writing since it is a matter of practical necessity. The agent’s authority ceases when the principal leaves office, unlike a delegate (Kelly v Watson)
- Administrative Assistant – Designated decision-maker can obtain assistance from others (research, interviews, prepare briefing papers etc.), does not need to be authorized formally or under delegation; the difficulty is in what work can be done by the assistant and what must be done by the decision-maker

Re Reference under Section 11 of Ombudsman Act 1976 for an Advisory Opinion; Ex parte Director-General of Social Services (1979) 2 ALD 86

Facts: The Ombudsman Act s11 provided that the Cth Ombudsman could request agencies to refer questions to the AAT for advisory opinion – this particular one arose out of Green v Daniels concerning the validity of decisions made by a delegate of the D-G of SS to affirm an earlier decision refusing unemployment benefits to a school leaver. The delegate, Mr Prowse, signed the letter as LJ Daniels – the director general, with his own initials alongside. The tribunal held that this was an invalid exercise of his delegated power

Brennan J (President):

Acts done in statutory power are valid if they fall within the statutory provision conferring it – but prima facie it does not fall within the statute unless done by the person to whom the statute reposes the power

Where powers of an authority are non-delegable but practically must be exercised by another – then there are classes of acts done by others on behalf of the authority which should be treated as though they were of the authority
- Lord Greene MR in Carltona rationale for this hinged on the doctrine of ministerial responsibility
The extent to which an authority can commit to other officials the performance of duties depends on the nature of the power so exercised and is to be considered with due regard to:

The purpose and objects of the statute
The character of the power conferred
The exigencies of the occasions which may arise with respect to its exercise
Other relevant considerations (Ex Parte Forster; Re USYD)

Where power is not delegable, the only power that can be exercised is acts of the authority and acts which, if they can authorize another to do, acts of the other – but both occur in the name of the authority
But when the power is delegable, the delegate can act in effective exercise of the power with his acts not treated as vicariously done by the authority – he is not an agent of the authority’s power and must exercise the power in his own name (Owen Dale v Anthony)

The Question in this case – can a departmental officer that is delegated elect whether to act as a delegate of power or an officer exercising the power of the D-G?

To assume so would be to assume that the officer has a duel character and can exercise his own power and the power vested in another – but this is not so in the case of the Social Services Act.
- The practical administrative necessity which warrants an authority’s exercising his power by the acts of another disappears when the authority is empowered to delegate all of his powers and functions to that other
Here the function of deciding whether a reviewable decision exists and exercising the power is so intertwined that they must be exercised by the same person – here it would be fanciful for P to regard himself as exercising any other power than his own
On a matter of administration signing in Daniels name is defective and would mislead one into believing that there was no possible appeal to a higher official
There is also no justification for the idea that delegate’s interests (possibility that they will be harassed by citizens if their identity is known) should be shielded as a matter of administrative policy. If the responsibility for decision-making is lifted from their shoulders so to should the power.

O’Reilly v Commissioner of State Bank of Victoria (1982) 153 CLR 1

Facts: The Income Tax Assessment Act s25 provided that the Commissioner of Tax can require a person to give evidence or produce documents. S 8(1) of the Tax Admin Act provided it could be delegated to a Deputy Commissioner. The Deputy Commissioner gave written authorization to a tax officer (Mr Holland) to issue notices under this Act and imprint his signature on it. Mr H issued to a taxpayer a notice framed as if it was done by the DC, bearing his signature. It was held to be valid.

Gibbs CJ:

After intimating that it was not in dispute the power of delegation to the DC existed but not a power for him to sub-delegate, Gibbs CJ discussed the importance of the statute in considering whether or not a document must be personally signed or whether signing can be delegated to another- it “depends on the nature of the power and all other circumstances of the case”

It is established that Ministers entrusted with administrative functions can act through an authorized officer of his department – but Ministers are not alone in the difficulties which give rise to such a power

In construing the Act there is no reason why it isn’t proper to consider that he couldn’t possibly exercise all of the powers personally
Section 264 involves the exercise of power adverse to individual rights and though this inclines in favour of the view it must be exercised personally the power applies to myriads of cases – literally millions of tax-payers.
- This would reduce administration of tax laws to chaos if these sections could only be administered by the Commissioner or Deputy Commissioner and clearly Parliament didn’t intend such a result
The existence of the power to delegate is important in considering whether they may act through an authorized agent – even though, by saying it could be delegated to Deputy Commissioners (not just anyone), there is no intention that it be wholesale delegated to minor officials, Parliament must have known of the practical necessity that powers conferred on the Commissioner should be exercised by officers acting as agents

Wilson J:

Noted the clear distinction between delegation and agency. Noted the opposing argument to the practical necessity to delegate – it should oblige the Commissioner to wholesale delegate to everyone, being destructive of administrative order. But this didn’t mean there is no need for delegation – it is necessary for administrative efficiency and a sensible devolution of power

The notices under challenged were expressed to be an exercise of the DC by the power delegated to him – bearing his signature
Each notice is what it purports to be, H was acting for the DC in an exercise of authority duly vested in him and his action was that of the DC.

The underlying point in both of these cases is that the nature of the decision made can have an important bearing on whether an agent as opposed to a delegate can make that decision. This was illustrated in Sec, Dept of Social Sec v Alvaro concerning provisions of the SS Act s1224 (overpayment recoverable as a debt if stemming from false statement/misrepresentation) and s1246 (secretary can waive debt)
- Held (von Doussa J): Whether the powers must be exercised by the authority and his delegate or whether they can be carried about by one acting with their authority depends on construction
  - s1224 – The steps leading to a decision, namely that an opinion is formed about a failure to comply or that there has been a misstatement/misrepresentation can be ascertained objectively and tested on review by evidentiary material. These support the view that an authorized officer can carry out functions of this kind.
  - s1237(1) – the power to waive a debt is discretionary and one that significantly affects the rights/liabilities of someone otherwise indebted to the Cth. It is also one likely to be exercised in a manner implemented broad policy objectives and directions of the Minister. These favour the view that it is to be exercised personally and not by an authorized officer, but they are not decisive
Another difficulty is...

#7242 - Judicial Review Grounds Ii - Administrative Law

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