Opinion Number. 1603


ministerial delegations
whether ministerial delegations of statutory powers are required to be re-issued by succeeding Ministers

Key Legislation

Treasury Regulations 1927 regs 60, 151: Australian Soldiers’ Repatriation Act 1920 ss 7(2), 12(1)

The Secretary to the Treasury

The Secretary to the Treasury has forwarded the following memorandum to me for advice:

  • I desire to forward herewith a copy of a memorandum received from the Auditor-General in regard to the appointment by the Minister of an officer to approve requisitions under the provisions of Treasury Regulation No. 60, and to invite your attention to paragraph 2 thereof in which reference is made to an opinion given by your Department that, in respect of the Repatriation Commission, renewals of delegations are not required by succeeding Ministers.
  1. Under other Treasury Regulations, the Minister may delegate specified powers, while under regulation 151 the Treasurer may delegate any of the powers conferred on him by the Regulations.
  2. Will you kindly advise whether all delegations under these Regulations should be renewed by successive Ministers including Treasurers or whether the principle which applies in the case of the Repatriation Commission has equal application in other directions.

The Auditor-General’s memorandum above referred to reads as follows:

The Chief Auditor, Canberra, has pointed out that, in a great number of cases, Departments are unable to give him reference to the ‘Ministerial Appointment’ required by Treasury Regulation 60(1), which reads:

  • Requisitions in accordance with Form 20, setting forth particulars of all supplies required, shall be submitted for approval to the Minister of the Department or an officer appointed by the Minister for such purpose.
  1. A question which has arisen in connection with this matter is whether, upon a new Minister assuming office, he should renew all the delegations of the previous Minister. On this point, the Attorney-General’s Department gave the opinion, in respect of the Repatriation Commission, that renewals of delegations are not required by succeeding Ministers. It may be stated that two Departments, viz. Trade and Customs and Attorney-General’s, do obtain renewals of delegations by succeeding Ministers.
  2. Apart form that question, there seems to be some doubt as to whether it has been the practice to issue such delegations. I am inclined to think that the Regulation has been somewhat lost sight of in recent years and that it has been assumed that the Heads and Chief Officers of Departments have, as a matter of course, the right to sign requisitions for supplies. I think I am correct in saying that, in the past, little, if anything, has been done by this office to ascertain whether the Regulation has been strictly complied with.
  3. I submit for Treasury consideration, the question whether the Regulation should be continued in its present form, or whether it should be modified to give Permanent Heads and/or Chief Officers, or their delegates, the right to approve of requisitions, subject to a limit of, say, £100, in individual cases.’

Under section 12(1) of the Australian Soldiers’ Repatriation Act 1920–1934, the Commission may, by writing under its seal with the approval of the Minister, delegate any of its powers and functions under the Act. The delegations referred to by the Auditor-General in paragraph 2 of his memorandum were made under section 12(1) with the approval of the Minister for the time being administering the Act.

Advice was accordingly given that statutory requirements in connexion with these delegations had been complied with, and there was no necessity for the Commission to obtain approval of the delegations on a change of Minister, while the delegations remain in force. I may add that, by section 7(2) of the Act, the Commission is constituted a body corporate with perpetual succession, and any delegation made by the Commission would remain in force during the pleasure of the Commission.

Under regulation 151 of the Treasury Regulations, the Treasurer may, by writing under his hand, delegate to any other person, any of the powers conferred on the Treasurer by those Regulations, except the power of delegation.

Under this regulation, the Treasurer may confer an authority on any person to do things which otherwise the Treasurer would have to do himself.

As a matter of strict law, the re-issue of delegations under regulation 151, when a person holding the office of Treasurer ceases to hold that office and the office is assumed by another person, is not necessary. The relationship between the holder of an office who gives a delegation and the person to whom the delegation is given is of such a nature that it seems highly desirable, although not legally necessary, that when another person becomes the holder of that office he should have an opportunity of reviewing all the delegations made by his predecessor which are still in force.

It has been invariable practice of this Department to submit to each new Attorney-General, forms of delegation renewing the delegations which were in force immediately before he assumed office.

Regulation 60 of the Treasury Regulations provides that requisitions shall be submitted for approval to the Minister or to an officer appointed by the Minister for such purpose.

When an officer is appointed by the Minister under this regulation, his appointment remains effective for the period specified in the instrument appointing him or until the appointment is terminated.

Where the instrument of appointment is not for a definite period specified therein, it will continue in force until terminated, notwithstanding a change in the holder of the office of Minister.

[Vol. 29, p. 352]