31 Oct 2019

Administrative law updater: When is there an implied power to delegate statutory functions?

By Caroline Bush, Eleanor Cannon

If there is no express power to delegate a statutory power, Courts will consider whether the language, scope or object of the statute override the principle that the power must be exercised personally.

What is the problem decision-makers face?

Delegations of statutory functions and powers are essential to the effective operation of government. Although statutory power is typically vested in an individual or body, in reality the volume of decisions to be made is often too large to be managed by a single person.

Whether a statutory function can be delegated is a matter of statutory construction. If a power is vested in an individual, then, subject to a contrary intention, it must be exercised personally by that individual, reflected by the Latin maxim delegatus non potest delegare. A contrary indication in the language, scope or object of the statute may override that presumption.

Decision-makers should be mindful that an exercise of delegated power may be subject to legal challenge where:

on its proper construction, the statute confers no power to delegate; or

the purported instrument of delegation is invalid.

How did Northern Land Council v Quall [2019] FCAFC 77 affect this?

The Court in Northern Land Council v Quall considered whether there was an implied power for a representative body (such as the Northern Land Council) to delegate its function to certify Indigenous Land Use Agreements (ILUA) under the Native Title Act 1997 (Native Title Act).

The Court found that there was no implied power to delegate the certification function. The decision provides a useful overview of the principles of implied powers to delegate and serves as a reminder of the need to carefully construe the relevant statutory scheme as a whole before identifying an implied power to delegate.

The facts and decision in Northern Land Council v Quall

The CEO, purporting to be a delegate of the Northern Land Council, sought to exercise the certification function by signing a certificate for an ILUA concerning the Cox Peninsula near Darwin.

Mr Quall sought judicial review on the basis that, relevantly, the certification function was not delegable under the Native Title Act. On this issue, the primary judge found for the Land Council. The primary judge held that the power in the Native Title Act that allowed the Land Council to do 'all things necessary and convenient' for the performance of its functions was broad enough to allow the certification function to be delegated to the CEO.

On appeal, the Full Federal Court disagreed with this conclusion. Justices Griffiths and White (Mortimer J agreeing) concluded that the certification function should be exercised by the Land Council itself. In doing so, the Court had particular regard to the objects of the legislative scheme, which sought to maximise the participation of Aboriginal persons. It was significant that before certifying an ILUA (which may have a significant effect on legal rights and interests of Aboriginal persons), the Land Council must form an opinion that all reasonable efforts have been made to ensure that all persons who hold, or may hold, native title have been identified and have authorised the making of the agreement. The Full Court determined that the proper exercise of the certification function required the Northern Land Council itself to hold and state the requisite opinion.

Furthermore, the Full Court reasoned that the "necessary and convenient" power did not provide for delegation of the certification function, because it is a strictly ancillary power and cannot extend the general scope or operation of the Native Title Act.

After Northern Land Council v Quall, here's what you need to do

In the absence of an express power it can be difficult to determine whether there is an implied power permitting delegation of a statutory function. Whether such an implied power exists will depend on the construction of the statute, beginning with the nature and character of the function itself.

Decision-makers should seek to rely on express statutory powers of delegation to the greatest possible extent. Where this is not possible, decision-makers should carefully consider whether there are any indicia within the statutory scheme which override the presumption that powers are to be exercised personally. It may not be enough to identify a provision that allows a decision-maker to do all things "necessary and convenient" for the performance of their functions.

Decision-makers should also not assume that there is a power to delegate based only on the practical or logistical difficulties of requiring the individual named in the statute to exercise that function personally. In Northern Land Council v Quall, the Court acknowledged that the proper discharge of the certification function by the Northern Land Council itself may present practical and logistical difficulties, but this did not change the Court's conclusion.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.