The delegation of Council functions is essential to the effective and efficient governance of a local Council. This guide will offer an overview of the fundamentals of delegating and sub-delegating Council functions under legislation and the common law.
Council’s Ability to Delegate
The Local Government Act 1993 (LGA) establishes the statutory framework for the delegation of Council’s authority. Further guidance is also given in the Interpretation Act 1987 (Interpretation Act).
Principally, section 377 of the LGA provides the Council with the power to delegate certain functions to the General Manager or any other person or body (not including another employee of the council). However, the scope of the power to delegate is not without restrictions and Councils need to be aware of the legal principles governing delegations.
To whom can a council delegate?
As mentioned above, a Council may delegate functions to the General Manager and to other persons or bodies. However, a Council cannot delegate any of its functions directly to an employee of the Council, other than the General Manager.
The delegation must be made to either a specified person or body (by name) or to a particular officer or the holder of a particular office. Where a function has been delegated to the holder of a particular office or position, the delegation does not cease to have effect merely because the person in the particular office or position ceases to hold that office or position. In that case, the person occupying the office or position is taken to be the delegate.
A function can only be delegated to an office or position that is in existence at the time that the delegation is made.
How does a council delegate?
There are certain practical steps which must be taken to validly delegate Council functions. Delegation by a Council to the General Manager, or any other person or body, must be done by resolution. The delegation must also be in, or be evidenced in, writing.
Delegations may also be limited by being made subject to conditions. Where the conditions are not met, the delegate will have no power to exercise the function and any resulting decision will be liable to be set aside. This means that Councils need to be careful when drafting conditional delegations to ensure that any conditions are clearly expressed and, preferably, do not involve subjective elements which can invite legal challenge. Some examples include delegations that are conditional on whether a conflict with a Council policy is “minor”, that require a determination to be made as to whether strict compliance with a Council policy would be “unreasonable” or “unnecessary” or a condition allowing exercise of the delegation where, following public notification of an application, no “well founded objection” is received.
Scope of Delegation
A delegation can cover a wide range of Council functions both under the LGA and also under any other Act. The General Manager may also delegate any of his or her functions, as well as sub-delegate any functions that have been delegated to the General Manager by the Council. In the exercise of a function by a delegate, the delegate may also exercise any other function that is incidental to the delegated function.
A Council cannot delegate a function that comprises any of the matters listed in subsections 377(1)(a) to (u) of the LGA. Those matters include (but are not limited to):
- making rates, charges and fees;
- borrowing money;
- voting of money for expenditure on council works, services or operations;
- the compulsory acquisition, purchase, sale, exchange or surrender of land; and
- any function that is specifically required to be undertaken by resolution of the council.
Neither the Council nor the General Manager can delegate their power of delegation.
A function cannot be delegated if the function is not in existence at the time that the delegation is made. For example, in the case of Australian Chemical Refiners Pty Ltd v Bradwell a prosecution was commenced under a delegation that had been given before the enactment of the section creating the offence. The Court of Criminal Appeal held that the delegation was ineffective.
Where a function of the Council depends on the Council forming an opinion, belief or state of mind and the function has been delegated, the function may be exercised by the delegate on the basis of his or her own opinion, belief or state of mind.
Where discretion is involved in the exercise of a function, a delegation of the function cannot limit or eliminate the discretion. An example of this type of function is the determination of a development application under section 4.16(1) of the Environmental Planning and Assessment Act 1979. That function involves the exercise of discretion as to whether or not to approve an application unconditionally, to approve it subject to conditions or to refuse it. A Council (or General Manager) cannot delegate the power to approve a development application without also delegating the power to impose conditions or refuse it.
After the Delegation
When a Council or General Manager delegates a function, the Council or the General Manager still retains the ability to exercise the function at any time before the delegate does so. A delegation may also be wholly or partly revoked by the delegator.
Councils are also required to review all of their delegations during the first 12 months of each term of office.
The content contained in this guide is, of course, general commentary only. It is not legal advice. Readers should contact us and receive our specific advice on the particular situation that concerns them.
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