Policy statement

This Corporate Policy sets out:

  • the delegation and authorisation powers provided by the ACNC Act
  • the instruments of delegation and authorisation, and
  • instructs authorised officers on the proper method of signing and executing documents that evidence the exercise of a statutory power.

Principle 1: The ACNC will assist the ACNC Commissioner with the Commissioner’s functions.

Principle 2: The ACNC will follow due processes to ensure that all decisions are legally authorised and the legal authority of an ACNC decision-maker will be clearly articulated in the decision.

Principle 3: ACNC staff are responsible for ensuring that they have been authorised to exercise legal powers in the name of the principal or delegate.

Context

  1. The ACNC has based this policy on section 115-55 of the ACNC Act.

Delegation and authorisations

  1. The Commissioner is the only statutory office holder within the ACNC, and therefore the only delegate of the Parliament.

  2. Under section 115-55 of the ACNC Act, the Commissioner can delegate any of the Commissioner’s powers or functions to a Senior Executive Service (SES) employee or acting SES employee of the ACNC, using an instrument of delegation.
  3. The Commissioner and Assistant Commissioner can authorise other ACNC employees to act on their behalf, using an instrument of authorisation. One instrument of authorisation can be used for multiple authorisations.
  4. The Legal team within the Legal and Policy Directorate will draft all instruments of authorisation and delegation.
  5. These delegations and authorisations are required to enable the Commissioner to carry out the functions set out in the ACNC Act. The Legal directorate will maintain a register of delegations and authorisations which will be accessible to all staff.

Signing and executing decisions

  1. Before signing or executing any notice, determination, instrument or other document which gives rise 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 by a delegate of the Commissioner to exercise the power in question. If in doubt, ACNC staff should ask for guidance from their manager or Director.
  2. Documents containing non-reviewable decisions (such as acknowledgments) may be signed by officers without using the name of the Commissioner or a delegate.
  3. In making a decision and signing any notice, determination, instrument or other document which gives rise 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 Commissioner or delegate and clearly indicate that the Commissioner or delegate is the accountable decision-maker.
  4. 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.
  5. All instruments should bear the name of the Commissioner or delegate. If an authorised officer is signing or executing an instrument, this should be done by signing “in the name of the Commissioner” or “in the name of the delegate”. In addition, the authorised officer is to set out the electronic signature, name and position of the Commissioner or the delegate.
  6. The authorised officer should then sign or write their own name as the person exercising the power on behalf of the Commissioner or delegate. This is done by using the word "per", "per pro" or the abbreviation "pp" (meaning "per procurationem" - by proxy) or another form of words which shows that the authorised officer is not making the decision in their own right.

Example 1

[Delegate’s or Commissioner’s electronic signature]
Name of delegate or Commissioner
(Assistant) Commissioner – Australian Charities and Not-for-profits Commission
Per [name of authorised officer]

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

Example 2

Please find attached a determination made on behalf of the Assistant Commissioner (General Counsel) of the ACNC and in the name of the Assistant Commissioner by me, a duly authorised officer.

Example 3

Please find attached a determination made on behalf of the Commissioner of the ACNC and in the name of the Commissioner by me, a duly authorised officer.

Explanation

  1. 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 with statutory power directly by the Parliament. The Commissioner is a Statutory office-holder and delegate of the Parliament.
  • Delegate - this category of official is delegated powers by the statutory office-holders. 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 an Assistant Commissioner. 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 and exercises the power on his or her own behalf. The delegate is required to comply with any written directions of the Commissioner in exercising powers under delegation under subsection 115-55(2).
  • Authorised officer - this category of official is also known as an agent or alter ego of the delegate or principal. 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 delegate or principal. Authorised officers exercise statutory power under the instruction of the delegate or principal and in the name of the delegate or principal.
  1. Officers must sign documents that evidence the exercise of a statutory power in accordance with their legal status. In essence this means that authorised officers should not sign their own name unless they have already signed the name of the delegate or principal and used a form of words outlined above. They are exercising the power of the delegate or principal, and are required in law to use and sign the name of the delegate or principal.
  2. 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.

Principles

Principle 1: The ACNC will assist the Commissioner with the Commissioner’s functions

  1. The function of the ACNC is to assist the Commissioner in the performance of the Commissioner’s functions under section 105-15 of the ACNC Act.
  2. The ACNC assists the Commissioner by the delegation of the Commissioner’s functions and powers to the Assistant Commissioner and the authorisation of ACNC staff to act on behalf of the Commissioner or Assistant Commissioner.

Principle 2: The ACNC will follow due processes to ensure that all decisions are legally authorised and the legal authority of an ACNC decision-maker will be clearly articulated in the decision

  1. Any notice, determination, instrument or other document that gives rise to a reviewable decision that is made by or on behalf of the Commissioner or Assistant Commissioner will be signed and executed as outlined in this policy to ensure that the authority for decision-making is clearly communicated and legally authorised.

Principle 3: ACNC staff are responsible for ensuring that they have been authorised to exercise legal powers in the name of the principal or delegate

  1. ACNC staff members that exercise legal powers in the name of the Commissioner or Assistant Commissioner will first ensure that they are authorised to do so.
  2. ACNC staff will confirm their authority to exercise powers in the name of the Commissioner or Assistant Commissioner by consulting the register of delegations and authorisations.
  3. The authority to draft instruments of authorisation and delegation will be centralised to ensure consistency of approach by requiring that all such instruments be drafted by the ACNC Legal team.

References

Australian Charities and Not-for-profits Commission Act 2012 (Cth) s 115-55, Part 7-2

Evidence Act 1995 (Cth) s 150

R v Justices of Kent (1873) 8 QB 305

Version history

VersionDate of effectSummary of change
Version 1 - Initial policy3 December 2012Initial policy endorsed by the Commissioner on 6 December 2012
Version 2 - First revision21 November 2016

Revised policy to state that all instruments of authorisation and delegation will be drafted by the Legal Directorate

Version 3 - Second revision20 December 2018Revised policy to reflect new organisational structure and new policy template