Delegation and subdelegation
288 Delegation and subdelegation
Delegation by Secretary
The Secretary may, in writing, delegate any of the Secretary’s functions or powers under this Act to an SES employee, or an acting SES employee, in the Department. The functions or powers that may be delegated under this subsection:
include functions or powers the Secretary has as a relevant chief executive, authorised applicant, infringement officer or authorised person for the purposes of a provision of the Regulatory Powers Act because of this Act; and
exclude functions and powers referred to in the following table:
Powers that must not be delegated | ||
|---|---|---|
Item | Power | Provision |
1 | To arrange for the use of computer programs for making certain decisions under this Act | Subsection 286(1) |
2 | To apply for an adverse publicity order | Subsection 364F(1) |
3 | To make rules | Section 432 |
The reference to this Act includes a reference to instruments made under this Act (see the definition of this Act in section 12).
The expressions SES employee and acting SES employee are defined in section 2B of the Acts Interpretation Act 1901.
See also sections 34AA and 34AB of the Acts Interpretation Act 1901.
Subdelegation
If, under subsection (1), the Secretary delegates a function or power to an SES employee or an acting SES employee in the Department, the employee may, in writing, subdelegate the function or power to:
an authorised officer; or
an APS employee in the Department; or
if the function or power is to issue export permits for a kind of prescribed goods under section 225 (and without limiting paragraph (a) or (b) of this subsection)—a nominated export permit issuer in relation to prescribed goods of that kind.
Section 225 deals with issuing export permits.
An authorised officer may only perform a function, or exercise a power, if that function or power is specified in the authorised officer’s instrument of authorisation (see subsection 301(1)).
Powers that must not be subdelegated
However, a power under a provision of this Act referred to in the following table must not be subdelegated under subsection (2):
Powers that must not be subdelegated | ||
|---|---|---|
Item | Power | Provision |
1 | To approve a manner for making an application for an exemption | Paragraph 53(3)(a) |
2 | To approve a form for making an application for an exemption | Paragraph 53(3)(b) |
3 | To make a decision in relation to an application to export relevant goods, if subsection 52(3) applies to the goods | Section 54 |
4 | To approve a manner for making an application for a government certificate | Paragraph 65(2)(a) |
5 | To approve a form for making an application for a government certificate | Paragraph 65(2)(b) |
6 | To make a decision in relation to an application for a government certificate, if section 69 applies to the application | Section 67 |
7 | To direct a person not to carry out specified activities or kinds of activities in relation to a debtor under this Act until a relevant Commonwealth liability has been paid | Subsection 95(3), 103(2), 128(3), 139(2), 172(3), 180(2), 206(3) or 213(2) |
8 | To direct the occupier of a registered establishment to cease carrying out one or more kinds of export operations in relation to one or more kinds of prescribed goods at the establishment | Subsection 132(1) |
9 | To keep a register of information about premises that are registered under Chapter 4 | Subsection 148(1) |
10 | To determine a place and a form for keeping a register of information about premises that are registered under Chapter 4 | Subsection 148(2) |
11 | To suspend an export licence on the ground that the holder of the licence is or was an associate of a person referred to in paragraph 221(1)(a), (b), (c) or (d) | Paragraph 205(1)(h) |
12 | To revoke an export licence on the ground that the holder of the licence is or was an associate of a person referred to in paragraph 221(1)(a), (b), (c) or (d) | Paragraph 212(1)(h) |
13 | To refuse to grant an export licence to an associate of a person referred to in paragraph 221(1)(a), (b), (c) or (d) | Paragraph 221(2)(a) |
14 | To give directions to the holder of an export licence | Subsection 222(1) |
15 | To approve a manner for making an application for an export permit | Paragraph 239(1)(a) |
16 | To approve a form for making an application for an export permit | Paragraph 239(1)(b) |
17 | To approve a manner for giving a notice of intention to export | Paragraph 243(1)(a) |
18 | To approve a form for a notice of intention to export | Paragraph 243(1)(b) |
19 | To give directions to a person or body in relation to a matter covered by rules relating to tariff rate quotas | Subsection 264(3) |
20 | To give a notice requiring a person to give the Secretary information or produce documents to the Secretary | Subsection 285(1) |
21 | If rules made for the purposes of section 287 authorise the Secretary to enter into arrangements, on behalf of the Commonwealth—to enter into such arrangements | Section 287 |
22 | To enter into an arrangement with a State or Territory body for officers or employees of the body to be authorised to be authorised officers | Subsection 294(1) |
23 | To give a direction to an authorised officer about the performance of the authorised officer’s functions or the exercise of the authorised officer’s powers | Subsection 301(2) |
24 | To approve a form for an identity card | Paragraph 306(2)(a) |
25 | To approve a manner for making an application | Paragraph 377(1)(a) |
26 | To approve a form for making an application | Paragraph 377(1)(b) |
26A | To use or disclose relevant information | Sections 389 to 394 and 397D |
27 | To remit or refund the whole or part of a cost‑recovery charge that is payable or that has been paid to the Commonwealth | Subsection 405(1) |
28 | To direct a person not to carry out specified activities or kinds of activities in relation to a debtor under this Act until a cost‑recovery charge has been paid | Section 406 |
29 | To approve a method for taking, testing or analysing a sample | Subparagraph 410(2)(b)(iii) |
30 | To approve a form for a certificate to be given by an analyst | Subsection 414(2) |
31 | To approve a form for a claim for compensation | Paragraph 420(4)(a) |
Delegation and subdelegation under the rules
The rules may provide that specified functions or powers of the Secretary under the rules:
must not be delegated; or
must not be subdelegated.
Delegate or subdelegate must comply with directions
In performing any functions or exercising any powers under a delegation or subdelegation, the delegate or subdelegate must comply with any directions of the Secretary or the person who delegated the function or power.
Application of the Acts Interpretation Act 1901 to subdelegation
Sections 34AA, 34AB and 34A of the Acts Interpretation Act 1901 apply in relation to a subdelegation in a corresponding way to the way in which they apply in relation to a delegation.
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