The video below is a recording of the Webinar that ran on Thursday, 1 June 2017. It focused on the following key areas:

  • WHY Delegate Authority
  • WHAT is Delegation and WHAT is not Delegation
  • HOW to make and manage Delegated Authorities, and
  • Your obligations WHEN using Delegated Authority.

WALGA Decision Making in Practice Toolkit
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WALGA Decision Making in Practice Toolkit – Available to Subscribers to the WALGA Governance Subscription Service.
The WALGA Decision Making in Practice Toolkit is available to subscribers of our online “Governance Subscription” service and will build through future releases to include additional Parts to the Decision Making series that focus on; Authorisations, Acting Through, Other Non-Statutory Decision Making Modes, and Policy and Procedures.

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Video Recording

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Video Download

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Question and Answer Session

The following are a range of questions asked during and after the Decision Making in Practice - Delegations webinar held by WALGA on 1 June 2017:

Question 1

If Council wished to condition a delegation that the delegate CEO has to comply with Council policy, is this necessary to say so or are they bound in any event?

Under s.5.41 of the Local Government Act 1995 (the 'Act'), it is the CEO’s duty to “cause council decisions to be implemented”, which includes causing Council’s Policies to be implemented. So regardless of a Delegation relevant to a policy the CEO is duty bound to ensure the policy is implemented.

It is however, considered a good governance practice to include a condition on the delegation requiring compliance with a relevant Policy, as it will contribute to more comprehensive Delegations and greater clarity for a Delegate when using the Delegation for their decision making.

Question 2

If an exercised delegation is recorded in the Local Government’s record keeping system on a file notated for keeping delegation records, would this meet the requirements of the Act?

Section 5.46 and Administration Regulation 19 prescribe the requirements for how a Delegate is required to keep a record of the exercise of the power or discharge of the duty.

Primary factors for how this record is kept are; it must be retained in accordance with the Local Government’s Record Keeping Plan and the record must contain the information required by Administration Reg. 19:

  • How the Delegate exercised the power or discharged the duty
  • When the power exercised or duty discharged, and
  • The persons, or classes of persons (other than Council / committee members or employees), who were directly affected by the power exercised or duty discharged.

The manner by which a Local Government chooses to keep the record will also be informed by if the Council has decided it requires periodic reporting on the use of the Delegation.

In most instances, the substantive record created when using the delegated authority (i.e. the letter to an applicant advising of the decision signed by the Delegate who made the decision), will be a sufficient record of the use of the delegated authority, which can be retained either in the relevant subject file or in a file specifically created to capture delegated authority decisions.

Either way, it is important for the Local Government to review the decision making requirements of each delegation to determine the best method of capturing the record and then ensure that the records are captured consistently.

Question 3

If a Councillor wishes to convince Council to change a delegation, what criteria should be used to convince Council to change a delegation that has been in place for a long time?

The criteria for determining when to delegate, as outlined in the Webinar, will be helpful when reviewing an existing delegation:

  • Does the delegation contribute to sound decision making that complies with legislative obligations?
  • Does it improve efficiency and customer service outcomes?
  • Does it ensure ‘Routine’ decisions are better managed?
  • Have risks and political and community sensitivities been sufficiently managed through the conditions and limitations on the delegation?
  • Does the delegate have the skills, technical expertise and training to exercise the delegated powers or duties?
  • Are there appropriate policies, procedures and / or training to support decision makers when using the Delegated Authority?

Responses to these criteria will help to inform how best to improve and refine the extent of power delegated as well as appropriate conditions and limitations on the use of the Delegation.

Question 4

What is your take on Delegations created to support Policies?

There are two categories of Policy relevant for the purposes of replying to this question:

  1. Policy which relates to how a statutory power is exercised or duty discharged.
    As per the response to Question 1, the Delegation of that power or duty may include a condition that requires compliance with the policy.
  2. Policy which has no legislative basis (i.e. it is a discretionary matter determined by Council).
    If the policy has no legislative basis (ie the policy sets the criteria for how a decision is made to allocate a community grants program), then the Policy itself may identify the CEO as the decision maker. It is then the CEO’s duty to ensure the policy is implemented (refer once again to the response to Question 1).

The subject matter of a discretionary policy cannot be delegated, as there is no statutory power or duty written in legislation. The CEO may however assign responsibility for giving effect to the policy to another employee by using duties described in a position description or written procedures.

Question 5

Is the decision to appoint an Acting CEO (for a short term such as 2 weeks) a delegation or an internal policy?

Section 5.36 states that the Council must be satisfied that a person is suitably qualified for the position of CEO. The duty to make that determination is assigned to Council and therefore cannot be delegated.

The Council could however adopt a policy which specifies the persons, by individual name and position title that Council believes are suitably qualified to act in the position of CEO. It is important that each individual is named, as Council’s obligation is to determine that each individual is in fact suitably qualified to act in the CEO position. If the Policy only lists the position titles, then in effect any person appointed to that position could act in the role of CEO, without Council having considered if they are suitably qualified and the policy would not be compliant with the Act.

It is recommended that the policy also outlines the method by which the persons included in the list are to be selected and appointed as required during absences of the CEO and may also include limitations for how long a person can act in the CEO position before a Council decision is required (i.e. selected on rotation through the list, with any appointment of an Acting CEO for a period greater than two weeks to be referred to Council).

Question 6

Does the record of a decision need to state that it was made using a Delegation?

This is a matter of good governance practice, to ensure that each record of a decision made under a delegation includes details of the decision maker exercising a delegated authority. This detail could be included in the signature line of the document that communicates the decision (see example 1) or be included in the main body of the communication (see example 2):

  • Example 1:
    Bill Smith
    Director Corporate Services
    Delegated Authority 1.2.13 Waive Fees and Charges
  • Example 2:
    Dear Mrs Smith

    I am pleased to advise that the fees associated with your hall hire for the Bush Fire Relief fundraising event have been waived under Delegated Authority 1.2.13 “Waive Fees and Charges”….

Question 7

Can the delegation from Council to the CEO limit the CEO in making a sub-delegation?

Yes, under section 59 of the Interpretation Act 1984, where any written law confers a power to delegate, such delegation may be made subject to any conditions, qualifications, limitations or exceptions as the Delegator (ie Council) may specify.

Therefore, Council may make a delegation with a condition that limits the CEO from sub-delegating the power at all, or alternatively make the condition so that it limits the circumstances in which the CEO can sub-delegate.

Council and CEO’s should work collaboratively, to develop the conditions placed on a delegation so as to ensure the delegation attains the principles set out in the response to Question 3 and does not become inefficient and remains operable.

Question 8

How far away is toolkit for List of Authorised Persons?

WALGA is working toward delivering an Authorised Persons chapter to our Decision Making in Practice Toolkit available to our subscribers in late 2017.

Question 9

Does WALGA have a model delegation register?

The Decision Making in Practice Toolkit, Part 2 Delegations, due for release on 1 July 2017, will include a template Delegation Register that includes delegations relevant to the following legislation:

  • Local Government Act 1995
  • Bush Fires Act 1954
  • Building Act 2011
  • Cat Act 2011
  • Dog Act 1976
  • Food Act 2008
  • Graffiti Vandalism Act 2015

This will be a baseline document that Local Governments can tailor to their needs.

Question 10

With regard to Rangers who perform their duties as an Acting Through (eg issuing infringements etc) is the infringement proof of them exercising their authority and is it enough for them to put it on file - or is there a reason for details to be put into a monthly report?

Issuing infringements is not a matter for Acting Through, as the decision on whether or not to issue an infringement requires discretion.

Section 9.10 of the Act requires a person to be appointed as an Authorised Person for the purposes of issuing infringements under the Act and its subsidiary Local Laws.

The record of the infringement is a sufficient record of the Ranger using their authority as an Authorised Person and any requirement for details of infringement notices to be included in a monthly report is a matter that will be determined specifically by each Local Government.

Question 11

Purchasing authority - is the paper trail of the purchase order the only document needed to report the use of the delegated authority?

Issuing a requisition or purchase order are mechanisms for incurring liabilities, which the Act and Regulations require the Local Government and the CEO to control by developing “systems and procedures” [see FM Regs 5 and 11].

The Act and Regulations do not describe incurring liabilities as an express (written) power or duty and therefore it is not capable of being delegated.

Rather, the CEO must establish systems and written procedures for incurring liabilities which ensure compliance with legislation and purchasing policy and provide appropriate internal controls and risk mitigation. These procedures will describe how records are to be created and retained to evidence how compliance and internal controls have been achieved.