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

This Corporate Policy sets out the delegation and authorisation powers provided by the ACNC Act and instructs ACNC 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: ACNC officers will only make decisions if they are authorised to make them in the course of their duties.
• Principle 3: Decisions will be signed and executed effectively.

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

1. The Commissioner is the only statutory office holder within the ACNC. The Commissioner is appointed to administer the ACNC Act under section 110-5(2) of the ACNC Act. The Governor-General appoints an ACNC Commissioner by written instrument under section 115-5 of the ACNC Act.
2. The Commissioner can delegate, using a written Instrument of Delegation, any of their powers or functions to a Senior Executive Service (SES) employee or acting SES employee of the ACNC who is a member of staff assisting the Commissioner under section 115-55 of the ACNC Act. The staff assisting the Commissioner, including SES employees, are to be persons engaged under the Public Service Act 1999 (section 120-5(1) ACNC Act).
3. The only power that the Commissioner cannot delegate is the power to delegate itself. This means that if the Commissioner has delegated certain powers to Assistant Commissioners, then the Assistant Commissioners cannot further delegate those powers to ACNC officers.
4. The Commissioner and the Commissioner’s delegates can authorise ACNC officers to act on their behalf, using an Instrument of Authorisation. One Instrument of Authorisation can be used for multiple authorisations.
5. It is not possible for the Commissioner and Assistant Commissioners to make every decision under the ACNC Act and Regulations, and it is an administrative necessity that ACNC officers are authorised to make decisions on their behalf.
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 are clear and accessible to ACNC staff on the Legal and Policy Sharepoint homepage, so there is a written record of who is lawfully able to perform any particular function.
7. Some decisions are considered so consequential that they must be made personally by the Commissioner or Assistant Commissioners. Conditions are included in the Instruments of Authorisation to reflect this.
8. The Commissioner will delegate their powers or functions to a position level, rather than a person. The Commissioner and their delegates will authorise position levels, rather than people, to exercise powers or functions on their behalf. If a person is formally ‘acting’ in a certain position, they have the delegations or authorisations of that position.
9. Instruments of delegation and authorisation will be drafted as needed by the Legal and Policy directorate.
10. When a new Commissioner is appointed on an ongoing basis, new instruments of delegation and authorisation will be required.

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

11. Before signing or executing any notice, determination, instrument or other document which gives effect to a decision -, ACNC officers must ensure that they have been authorised by the Commissioner or their delegates to exercise the power or function in question. If in doubt, ACNC staff should ask for guidance from their manager, or the Legal and Policy Directorate.
12. 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 preparing a first draft of the reasons for decision. However, a decision-maker (whether it is a statutory office-holder, delegate, or ACNC 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.
13. 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

14. When making a decision, and when signing any notice, determination, instrument or other document which gives effect to a - decision, ACNC authorised officers must follow the directions below to ensure that the document is executed in a way that will give it legal effect. The document must bear the name of the delegate and clearly indicate that the delegate is the accountable decision-maker.
15. If Court rules or practice require a legal document to be executed differently to this policy, officers should follow the relevant requirements of the Court rules or practice and consult the Legal and Policy Directorate if clarity is required.
16. All delegated decisions should bear the name of the delegate to indicate that they are the decision maker.
17. If an ACNC authorised officer is signing or executing an authorised decision, 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.
18. 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.

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

Cate Bennett [Name of Commissioner or delegate]
Assistant Commissioner Regulatory Services [title]

19. Reference to the ACNC 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 ACNC Assistant Commissioner Regulatory Services"

20. ACNC officers may communicate with the recipients of an ACNC decision before and after a decision is made – for example, to request information or to provide information about review or appeal options and replying to routine communications addressed to the Commissioner or Assistant Commissioner. As the ACNC officer is not making a decision during such communications, they can be sent in the ACNC officer’s own name.

Explanation

21. 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 – The ACNC Commissioner is the statutory office-holder. The Commissioner can delegate in writing any of their powers or functions to an ACNC Assistant Commissioner except the power to delegate.
    • Delegate – Assistant Commissioners as delegates can exercise the powers or functions delegated by the ACNC Commissioner autonomously, in their own right and in their own name. That means that the delegate is responsible for the exercise of the power or function and exercises the power or function on their own behalf.
    • Authorised officer – ACNC officers are Australian Public Servants who are not Senior Executive Level staff, are authorised officers and agents of the delegate. They are authorised by an Instrument of Authorisation to exercise the power or function of the delegate. The authorised officer has no power in their own right and is not responsible for the exercise of the power or function. An act done by an authorised officer has the legal effect of an act done by the authorising delegate being the Assistant Commissioner. Authorised officers must comply with any applicable policy documents in undertaking authorised powers or functions. ‘Policy documents’ has the meaning in paragraph 6 of the ACNC Corporate Policy: ACNC Policy Framework.
22. 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)
23. Section 150 of the Evidence Act 1995 (Cth) states that documents that purport to have been signed by an office holder are presumed to have been validly signed (unless the contrary is proved). The common law provides equivalent protection through a line of judicial decisions starting with R v Justices of Kent (1873) 8 QB 305. This means that if you receive a document from the ACNC that has been clearly signed by an ACNC staff member, you can presume it has been validly signed.