Statutory Delegations - Delegation of Powers and Duties Pursuant to Legislation

Applicable to: Department of Health

Description: This Operational Directive relates to the delegation of statutory powers and duties contained in various legislation and sets out the process to be followed for the drafting and approval of instruments of delegation.

Statutory Delegations – Delegation of Powers and Duties Pursuant to Legislation

This Operational Directive relates to the delegation of statutory powers and duties contained in various legislation and sets out the process to be followed for the drafting and approval of instruments of delegation. 

The statutory delegations are separate to the Authorities Delegations and Directions Schedules (Schedules) published by Corporate Governance, North Metropolitan Area Health Service, South Metropolitan Area Health Service, WA Country Health Service and PathWest.  The powers and duties contained in the Schedules relate to the day to day operation of the Department.  The statutory delegations relate to specific powers and duties contained in specific acts and regulations.

Western Australian legislation can be found on the State Law Publisher’s website:
https://www.slp.wa.gov.au/Index.html.

This Operational Directive is applicable to the Department of Health.

The Minister for Health, the Chief Executive Officer of the Department of Health (CEO) or a prescribed officer has the power under section 9 of the Health Legislation Administration Act 1984 (“the HLA Act”) to delegate any of their powers or duties (except the power to delegate) which are conferred on them by any Act to which the HLA Act applies, i.e. all Acts within the health portfolio.

Pursuant to the HLA Act a prescribed officer means the Executive Director, Personal Health Services; the Executive Director, Public Health and Scientific Support Services; the Chief Psychiatrist; or any officer or officer of a class of officers prescribed by the regulations.  There are currently no regulations made under the HLA Act.

The power to delegate may also be contained in an Act itself, for example, the Food Act 2008 (section 117) and the Tobacco Products Control Act 2006 (section 74).

A delegation may be made to a specified person or to persons of a specified class, or may be made to the holder or holders for the time being of a specified office or class of offices.  It is, however, recommended that delegations be made to a position rather than a person.  The delegation can then apply to any persons who may, from time to time, act in that position.

It is noted that non-health portfolio legislation will require authorisation, designation or direction instruments rather than delegations, as the power to delegate under section 9 of the HLA Act does not apply to legislation outside of the health portfolio. 

The essential difference is that with a delegation the delegate makes the decision in his own right and is considered to have made the decision personally.  With authorisations, designations or directions, the person makes the decision on behalf of the person who possesses the power and the person who possesses the power remains responsible for the decision.

Legal & Legislative Services (L&LS) maintains a database of statutory delegations.  To ensure that all delegations are captured, it is essential that all instruments of delegation, authorisation, designation or direction be drafted and submitted for approval by L&LS.

If new instruments of delegation or amendments to existing instruments are required, the following process should be followed:

  1. Completion of a Request for Legal Advice form detailing the required delegations.  Details should include:
    • the powers and duties to be delegated;
    • the position/s to have the delegations; and
    • the reason the delegations are required.

    The Request for Legal Advice form can be found at:
    http://intranet.health.wa.gov.au/llsd/docs/legal_advice_request_form.doc

  2. L&LS will draft the appropriate delegation instrument/s and arrange for execution by the Minister, CEO or prescribed officer as applicable.
  3. A copy of the signed instrument will be forwarded to all relevant officers and placed on the L&LS delegations database.

Kim Snowball
DIRECTOR GENERAL
DIRECTOR GENERAL’S DIVISION

Date of effect: 15 March 2012 to 15 March 2017

Policy Framework

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