Corporate Policy: Delegation, authorisation and signing

This Corporate Policy is issued under the authority of the Commissioner and should be read together with the ACNC Policy Framework, which sets out the scope, context and definitions common to our policies.

Context statement

1. This Corporate Policy sets out the delegation and authorisation powers provided by the ACNC Act and instructs authorised officers on the proper method of signing and executing documents that evidence the exercise of a statutory power.

Principles

• Principle 1: Delegations and authorisations will be lawful, accurate and transparent.
• Principle 2: In the course of their duties, ACNC officers will only make decisions if they are authorised to make them.
• Principle 3: Decisions will be signed and executed effectively.

Principle 1: Delegations and authorisations will be lawful, accurate and transparent.

2. The Commissioner is the only statutory office holder within the ACNC, and therefore the only delegate of the Parliament.
3. Under section 115-55 of the ACNC Act, the Commissioner can delegate any of their powers or functions to a Senior Executive Service (SES) employee or acting SES employee of the ACNC, using an Instrument of Delegation.
4. The only power that the Commissioner cannot delegate is the power to delegate itself. This means, if the Commissioner has delegated certain powers to an Assistant Commissioner, that Assistant Commissioner cannot then delegate those powers any further.
5. The Commissioner and the Commissioner’s delegate(s) can authorise other ACNC officers to act on their behalf, using an Instrument of Authorisation. One instrument of authorisation can be used for multiple authorisations.
6. These delegations and authorisations are required to enable the Commissioner to carry out the functions set out in the ACNC Act. Any instruments of delegation and authorisation will be clear and accessible to ACNC staff, so they know who is lawfully able to perform any particular function.
7. The Commissioner will delegate their powers to a position, rather than a person. Likewise, the Commissioner and their delegate(s) will authorise positions, rather than people, to exercise powers on their behalf. This means that if a person is formally ‘acting’ in a certain position, they have the delegations or authorisations of that position.
8. Instruments of delegation and authorisation will be drafted, as needed, by the Legal and Policy directorate.

Principle 2: In the course of their duties, ACNC officers will only make decisions if they are authorised to make them.

9. Before signing or executing any notice, determination, instrument or other document which gives effect to a decision that can be reviewed under Part 7-2 of the ACNC Act, officers must ensure that they have been authorised by the Commissioner or their delegate(s) to exercise the power in question. If in doubt, ACNC staff should ask for guidance from their manager, or the Legal and Policy Directorate.
10. ACNC staff who are not authorised to make a particular decision may do background work that enables the decision to be made and will often be required to do so in the course of their duties. This may include research and briefing the decision-maker and drafting the decision. However, a decision-maker (whether it is a statutory office-holder, delegate, or authorised officer) must not simply endorse a recommendation provided by someone else. That does not constitute a valid decision. The decision-maker must apply an independent mind to their decision.
11. When making decisions under legislation other than the ACNC Act, a different approach may be required (for example, under the Freedom of Information Act 1982 (Cth) officers may be authorised to personally make FOI decisions and not rely on a delegation).

Principle 3: Decisions will be signed and executed effectively

12. Documents containing non-reviewable decisions (such as acknowledgments and cover letters) may be signed by officers personally, without using the name of a delegate.
13. When making a decision, and when signing any notice, determination, instrument or other document which gives effect to a reviewable decision, authorised officers must follow the directions below to ensure that the document is executed in a way that will give it legal effect. It must bear the name of the delegate and clearly indicate that the delegate is the accountable decision-maker.
14. If Court rules or practice require a legal document to be executed in a different way from the directions contained in this guidance statement, officers should follow the relevant requirements of the Court rules or practice.
15. All instruments should bear the name of the delegate. If an authorised officer is signing or executing an instrument, this should be done by signing “on behalf of the delegate”. That means that the authorised officer sets out the delegate’s electronic signature and the delegate’s name and position at the ACNC.
16. The authorised officer then signs or writes their own name as the person exercising the power on behalf of the delegate. The ACNC preference is to use the wording set out in the example below, as the meaning of “per”, “per pro” and “pp” is not widely understood.

Example 1
Authorised officer’s signature
FIRST NAME SURNAME [name of authorised officer]
Compliance Officer [title of authorised officer]

On behalf of

Commissioner or delegate’s signature

Anna Longley [Name of Commissioner or delegate]
Assistant Commissioner General Counsel [title]

17. Reference to the authorised officer in any related documentation should make it clear that the authorised officer acted on behalf of the delegate and in the name of the delegate, such as:

Example 2

"I have attached a decision that I have made as an authorised officer, on behalf of the Assistant Commissioner”

18. The recipients of ACNC decisions may reply directly to the authorised officer – typically by email - and use a salutation such a ‘Dear Commissioner’. Staff can usually reply directly to such correspondence and should do so if it is routine or administrative in nature (for example, advice about review options or avenues to make a complaint). Such replies should clearly be in the staff member’s own name (they are not making a decision, and so they are not communicating as an authorised officer).

Explanation

19. There are three categories of officer in the ACNC who can exercise statutory power. Each category has a different legal status. They are:
    • Statutory office-holder: this category of official is invested directly by the Parliament with statutory power. The Commissioner is a statutory office-holder and delegate of the Commonwealth Parliament.
    • Delegate: this category of official is delegated powers by the statutory office-holder. Section 115-55 of the ACNC Act gives the Commissioner power to delegate, by an instrument in writing, any of the Commissioner’s powers or functions to an SES employee or a person acting as an SES employee of the ACNC. In effect this means that the Commissioner may delegate to the Assistant Commissioner(s). The effect of the delegations is that delegates can exercise the power autonomously, in their own right, and in their own name. That means that the delegate is responsible for the exercise of the power, exercises the power on his or her own behalf, and cannot be instructed by the statutory office-holder (or anyone else) how to exercise the power.
    • Authorised officer: this category of official is also known as an agent, or alter ego, of the delegate. The official has been authorised to exercise the power of the principal or the delegate. The authorised officer is not invested with any power in their own right, and is not responsible in law for the exercise of the power. An act done by an authorised officer has the legal effect of an act done personally by the person who authorised them. Authorised officers exercise statutory power under the instruction of the delegate or principal and in the name of the delegate or principal.
20. Only the Commissioner and Assistant Commissioner(s) have the power to make most decisions in the ACNC Act and Australian Charities and Not-for-profits Commission Regulation 2013 (Cth). Authorised officers can perform many of these functions and, in practice, make many of these decisions, on their behalf. This is an administrative necessity; it is not possible for the Commissioner and Assistant Commissioner to personally make every decision. Some decisions are considered so consequential that no staff are authorised to make them, and they must be made personally by the Commissioner or Assistant Commissioner(s)
21. Officers must sign documents that evidence the exercise of a statutory power in accordance with their legal status. Authorised officers should only sign their own name if they have already signed the name of the delegate and used the form of words outlined above. They are exercising the delegate's power and are required in law to use and sign the name of the delegate.
22. Section 150 of the Evidence Act 1995 (Cth) states that documents that appear to have been signed by an office holder are presumed to have been validly signed, and the common law provides equivalent protection through a line of judicial decisions starting with R v Justices of Kent (1873) 8 QB 305.