Creating a new statutory power
This is a single section from Chapter 18. Read the full chapter here.
Will the new power be delegable?
Legislation should state the extent to which a new power can be delegated.
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. In these cases, a power to delegate the power may be advantageous. If a statutory power is to be delegated to another person, an express provision allowing this is required in the Act. To avoid uncertainty and litigation, legislation must be clear about who may exercise the delegated power and when it may be exercised by that person.
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.
Section 47 of the Legislation Act 2019 provides that a power conferred on the holder of an office (other than a Minister) may be exercised by that person’s deputy or a person lawfully holding, or performing the duties of, the office. The provisions of the Legislation Act 2019 will apply unless legislation indicates otherwise. The Crown Entities Act 2004 contains default provisions providing for delegation by Crown entities. The Public Service Act 2020 contains standard delegation provisions for the Public Service, and Schedule 7 of the Local Government Act 2002 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.