I have found over the years that too many people in all sorts of government departments and agencies forget to delegate. They also forget to check for delegations before they make decisions.
Why is this important, and why does it happen?
And how can this problem be prevented?
Why are delegations important?
Delegations are crucial for any organisation working within a statutory or legislative framework. They are important because the powers and functions granted by parliament in that framework must generally be distributed within the organisation in accordance with that framework.
That sounds obvious, but it doesn’t seem to be obvious to everyone.
If the statutory powers and functions are not distributed in accordance with the statute, then they are probably not distributed at all. That means that people who are making important decisions and doing other important actions do not have authority to do those things. And that means in turn that those decisions and actions are likely to be unlawful.
And the consequences of forgetting to delegate?
The consequences for this can be dire indeed. And if we think about the consequences we might be less inclined to forget to delegate.
I have seen licences granted without a delegation. That means there was no grant. That means the ‘licensee’ is acting outside the law and even committing offences.
I have seen compulsory notices issued without proper authority. That means the notices are not lawful. That means that things produced did not need to be. That could result in trespass on the part of the government agency, or the unlawful collection of fines, as well as other consequences.
I have seen government agencies give information to another without a delegation or other authority. That means that they issue the information unlawfully. It means that protections of the Act do not apply. It means that they breach confidentiality obligations, as well as privacy laws.
The various risks to an organisation arising out of ‘forgetting to delegate’ are manifold. I am always surprised that the ‘auditors’ (whoever they may be, internal or external) seem to miss these things too. What about risk management? Or insurance? Not to mention corporate governance?
In my administrative law training, I emphasise the risks of unlawful decision making. They are extensive. And they extend into reputational risk as well. Government agencies often discover the failure to delegate when it is too late. A court case looms. A judgment on the public website ‘austlii’ is coming. And in that judgment will be etched for a long time: ‘This organisation failed to delegate this power for many years’.
This goes beyond basic housekeeping to the very core of a government organisation whose functions and very existence may be dependent upon legislation.
Why do people forget to delegate?
This question is an interesting one. Why do people fail to delegate statutory powers and functions?
Here are a few suggestions as to their reasons.
First, the managers of that organisation do not understand that their powers come from a statute. This is a pretty fundamental problem, which requires training, education and cultural change.
Second, and related to the first, people in the organisation do not realise that delegations are needed. That an officer cannot pick and choose their powers. That a delegation of power must occur first.
Third, organisations prioritise policies and procedures above the legislation. Why they do this should probably be the subject of another post. It is, however, a massive problem which requires a significant shift in thinking.
Fourth, there is a lack of training for those writing delegation instruments. Or perhaps they need more time to do their jobs thoroughly.
Fifth, those who exercise powers and functions do not bother to check whether they have authority to do so. Perhaps there is a lack of education on this issue. Perhaps they just forget about it, or because their policies and procedures direct them the wrong way, or their managers tell them it doesn’t matter.
Maybe you can think of other reasons. If so, please post a comment!
How can failure to delegate be fixed? Think harder!
Like the elephant, we need to remember in order to survive. First, know where your food and water is. Know that you have to go back there to survive. If you don’t remember, you won’t survive. That is, if you don’t go to the source of your governmental life, your decisions will not have life either. If we see delegations in this way, we might remember to delegate in order for our decision making ‘life’ to survive. We will see that forgetting to delegate is a fundamental issue.
Learn about legislation, how to approach it, and how to spot decision making powers that require delegation.
Do training courses, of course. But learn basic skills like having the legislation by your side and consulting it constantly.
Stand up to your managers and policy makers when they ask you to do the opposite of what the legislation provides. Ask the managers to get legal advice. Take responsibility for your own decision making, because you are, in fact, responsible for it. (This is so even if the organisation takes over legal liability. I think we need to foster a sense of personal responsibility when making decisions that affect the lives and livelihoods of others.)
Work out ways to make sure you don’t forget to delegate!
Learn from this case study and don’t forget to delegate!
One organisation I have dealt with told me that the head of that organisation (who has statutory powers and is able to delegate those powers to others) did not issue delegation instruments. The head of the organisation found this task too daunting.
How did they produce delegations? Well, these days, where electronic signatures are the norm, each officer in the organisation made their own delegations. They thought, I think, that the head of the organisation had authorised them in some sort of vague way to issue themselves a delegation, whenever they needed it.
Presumably nobody in the organisation had seen this as a problem.
Can anyone else see a problem with this?
Maybe I make too many assumptions. I had thought that when a statute says a person has powers, and can delegate them to others, that only that person could do such a delegation. But the assumption is based on the words of the statute: only a person can delegate, because only that person has those powers in the first place.
What assumptions does your organisation make? Are they based on the text of legislation? If not, then you will find your organisation ‘forgetting’ to delegate powers; and instead creating an unauthorised, highly risky system of decision-making.