As a senior executive, you will make many decisions that affect and influence individuals and organisations. Those decisions may affect the public and how services are provided.
It is important that you understand the legal and administrative framework in which decisions are made, including the source of power for any decisions you make. In most cases, the power will come from an Act of Parliament; a subordinate law, such as a Regulation; or a legal instrument under an Act or subordinate law, such as an instrument of delegation.
As a senior executive, you will likely have delegated authority to make decisions. The proper delegation of authority plays an important role in ensuring that an organisation and its employees act in accordance with the law. Delegation can enhance the efficiency of any organisation’s operations by devolving management and administrative functions to appropriate levels.
What is delegation?
This section uses expressions such as ‘delegation’, ‘delegated authority’ and ‘delegate’ without generally distinguishing the ways in which a person can be given authority to exercise a function that an Act or other law has conferred on someone else. However, it is important to bear in mind that there are different ways for this to occur and that they have different implications.
An Act or other law may also allow the person on whom a function has been conferred to ‘delegate’ it to someone else. In this scenario, the delegate exercises the function independently, in their own right, within the limits set by the delegation. The Interpretation Act 1987 sets out rules about exercising a power to delegate a function. These rules apply in most cases and include, for example, that the delegation has to be in - or evidenced by - writing.
The person on whom a function has been conferred may also ‘authorises’ someone else to exercise that function on their behalf, rather than as their delegate. In this scenario, the authorised person exercises the function in the name of the authoriser. The law that confers the function will determine whether someone else can be authorised to exercise that function, or whether it can only be exercised by (a) the person on whom the law confers it or (b) a person to whom it has been delegated, as described in the previous paragraph.
Managing a delegation of authority
If the head of a Department or agency (the delegator) delegates a function, it is important to ensure that:
- there is a delegation policy or procedures setting out the obligations and responsibilities associated with acting under delegation
- the delegation is in writing and sets out who the functions are delegated to and any conditions on the delegation
- a central electronic register of all original instruments of delegation and associated documentation is maintained
- reports on the exercise of delegated authority are made available as required for accountability and reporting activities.
What functions are typically delegated?
There are functions common to many Departments and agencies that may rely on the exercise of delegated authority. Instruments of delegation or authorisation commonly deal with functions under the:
- Government Sector Employment Act 2013 (GSE Act)
- Government Sector Finance Act 2018
- Public Works and Procurement Act 1912
- Government Information (Public Access) Act 2009 (GIPA Act)
- Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009.
Commonly delegated functions include those related to:
- human resources, such as approving recruitment, assignment and secondments, leave, increments, allowances, initial and ongoing employment
- financial, such as agreeing to consultancies and contracts, approving travel and credit card use
- general administration, such as records management and communications
- information technology, such as approving access to technology, and finance and human resources systems
- Government Employee Numbers, such as approving roles requiring access to limited information
- the GIPA Act, such as approving access to information.
There are functions specific to particular Departments and agencies that may rely on the exercise of delegated authority. These include regulatory functions and those involving the provision of services to the community. Examples include granting licences and approvals, issuing legal notices, setting fees, and planning the delivery of public transport infrastructure.
When exercising delegated authority, delegates must apply their judgement and act within the limits, if any, of that authority. They should be able to justify the decisions they make under delegated authority, in part by ensuring that they have all the required information when making their decision.
Under the Public Service Commissioner Direction No 1 of 2015, heads of government sector agencies must implement the Code of Ethics and Conduct for NSW government sector employees. In making decisions and exercising delegated authority, senior executives and other employees must ensure that they apply the objective, core values and principles of the government sector’s Ethical Framework. For more information on the Direction and Ethical Framework, see the website: Ethics and conduct.
Each agency must also implement its own procedures for disclosing and managing private interests that may conflict with the agency's interests or an individual's employment within that agency. As a senior executive, you must disclose any private interests to your employer, who will then assess and manage any conflicts as required. Further information on managing private interests is available in Senior executive conditions of employment.
As a senior executive, you are responsible for:
- communicating the existence and effect of any instrument of delegation or authorisation, in particular to those in roles with delegated authority, including in relation to employees' the financial delegations
- monitoring the exercise of delegated authority to ensure it is appropriate, and taking remedial action where it is not
- regularly reviewing instruments of delegation or authorisation to ensure their currency, and advising relevant employees of any changes to them
- satisfying yourself that employees with delegated authority have the appropriate information, skills and training to exercise it
- taking remedial action where an employee is not exercising their delegated authority appropriately. This may include action under Section 69 of the GSE Act, which relates to misconduct.
Where will I find delegations relevant to my role?
You should be able to access the relevant instruments of delegation or authorisation on your Department's or agency's intranet. Your corporate services team can provide further guidance and training on these delegations.
NSW Treasury’s Manual of Delegations sets out some particular employee-related functions that the Secretary of the Treasury has delegated to heads of Public Service agencies under the GSE Act.
- Consult with your agency's intranet for more information
Senior executive obligations
The NSW Cabinet system
Service delivery enablers