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Creating a new statutory power
This is a single section from Chapter 16. Read the full chapter here.
Will the new power be delegable?
Legislation should state the extent to which a new power can be delegated.
To avoid uncertainty and litigation, legislation must be clear as to when (if at all) a power may be exercised by a person other than that to whom it was granted. Legislation must also be clear who that person is. Some powers are of such importance that they should only ever be exercised by the person granted them and no delegation should be permitted. Examples include powers to make subsidiary legislation, borrow money, and grant warrants of appointment. However, the reality of public administration often means that it is impractical (or impossible) for the person to whom a power is granted to exercise that power. If a statutory power is to be delegated to another person, an express provision allowing this will be required in primary legislation.
Section 14 of the Interpretation Act provides that a power conferred on the holder of an office (other than a Minister) may be exercised by that person’s deputy. The provisions of the Interpretation Act will apply unless legislation indicates otherwise. The Crown Entities Act 2004 contains default provisions providing for delegation by Crown entities. The State Sector Act 1988 contains standard delegation provisions for the public service, and the Local Government Act (Schedule 7) specifies what a local authority may and may not delegate. These default provisions should be relied on unless there are good reasons not to do so.
Generally, legislation should not authorise a person to delegate the power of delegation.