Opinion Number. 777

Subject

DELEGATION OF MINISTERIAL POWERS
DELEGATION BY MINISTER OF POWERS CONFERRED BY LEGISLATION: DELEGATION DISTINGUISHED FROM AUTHORITY TO EXERCISE POWERS: CONFERRAL BY AMENDING REGULATION OF POWER TO DELEGATE NOT CONTAINED IN ORIGINAL REGULATION: POWER TO GIVE AMENDING REGULATION RETROSPECTIVE EFFECT

Key Legislation

DEFENCE ACT 1903, s. 127: MILITARY FINANCIAL AND ALLOWANCE REGULATIONS, reg. 138

Date
Client
The Acting Secretary, Department of Defence

The Acting Secretary, Department of Defence, has forwarded the following memorandum for advice:

The Minister of State for Defence on 18.8.15 delegated in writing to the Secretary of the Department of Defence, and to the Finance Member of the Military Board, certain of the powers he is authorised to exercise under Acts of the Commonwealth and Regulations thereunder. Some delegations have since been incorporated in Regulations approved by the Executive Council, but the Auditor-General asks for a reference to the authority relied upon by the Minister of Defence for the delegation of his powers in cases other than those authorised by Regulation.

For the purposes of this reference for opinion, the following Financial and Allowance Regulation under the Defence Act, page 727, Commonwealth Statutory Rules is quoted:

138. Notwithstanding anything contained in above Regulations, the Minister may approve of any other services or supplies being charged to 'Corps Contingent Allowance' upon the recommendation of the Officer Commanding, and indorsed by the Commandant.

This Department is not aware of any statutory authority for delegation of powers by a Minister, but it contends that unless the contrary intention appears in some Act or regulation any power exercised by a Minister may be delegated by such Minister, both under his general authority as a Minister and by right of his possession of such a power to any person to exercise it on his behalf, and that, therefore, such person may exercise the power as if he were the Minister until the delegation is removed by the same authority.

Your advice as to the Minister's powers is requested.

Where an Act or Regulations confer powers on a Minister the Minister, in the strict sense of the word, cannot delegate those powers to any other person, unless the Act or Regulations conferring the powers also empower the Minister to delegate those powers.

It does not follow, however, that where a statutory power is given to the Minister, he may not be able to authorise other persons to act in the matter. It all depends on the nature of the power: e.g. the power of the Minister, in the fifth proviso to section 127, to declare certain things by Gazette notice, is clearly a power to be exercised by the Minister himself, and in the absence of a power of delegation he cannot authorise any other person to exercise it.

But where, say, the approval of the Minister is required for any purpose, the Minister might authorise another person to approve for him, i.e. he might in effect say 'I approve if you approve'.

It is, therefore, difficult to advise generally on how the Minister's powers may be exercised.

I would, however, point out that in any case where Regulations confer powers on the Minister, and these Regulations contain no power of delegation, an amending regulation can be passed conferring that power on the Minister, and the regulation can be given retrospective effect to cover the previous invalid delegation.

[Vol. 15, p. 89]