Ostensible Authority in Public Law

Date01 March 1999
DOI10.22145/flr.27.1.1
Published date01 March 1999
Subject MatterArticle
OSTENSIBLE AUTHORITY
IN
PUBLIC LAW
Enid
Campbell*
INTRODUCTION
In
public administration
many
decisions
made
in
purported
exercise
of
statutory
powers
are, as a
matter
of practical necessity,
made
not
by
the officer
or
body
in
whom
the
power
has
been
reposed
by
statute
but
by
persons
purporting
to act as delegates
or
agents of the repository of the power.
Nowadays
the
empowering
statute will often
contain aprovision which expressly authorises delegations of
power
or
the
appointment
of authorised officers who,
by
virtue of their appointment, will
be
invested
with
specified powers. The statute
may
limit the
powers
which
may
be
delegated.
It
may
restrict the classes of persons
who
may
be
selected to act as
delegates.
It
may
stipulate
that
delegations be effected
by
instruments
in
writing
or
by
some
other procedure.
Even if astatute does
not
expressly authorise delegations of power, authority
to
delegate,
or
to act
through
the agency of others,l
may
be implied. Whether
such
authority is implied
depends
on
arange of considerations,
among
them
the
nature
and
purpose
of
the
power, the occasions
on
which the
power
is to
be
exercised
and
matters
to
be
taken into account
in
exercise of the power,
and
the status of the repository of the
power.2
In
determining whether the repository of astatutory
power
is obliged to
exercise the
power
personally or is impliedly authorised to act
through
the agency of
others, the courts have been attentive to the requirements of effective
and
efficient
administration. They have recognised
that
the functions reposed
in
some
public bodies
and
officers are so multifarious
that
the business of
government
could
not
be carried
on
if those bodies
and
officers were required to exercise all of their
powers
personally.3
Members of the public
who
have
dealings
with
administrative agencies of
government,
whether
as applicants for benefits or permits
or
in
some
other capacity,
will normally
assume
that
the officials
with
whom
they deal,
and
who
make
determinations
in
their cases,
have
the requisite authority to act. Certainly few
members of the public are likely to consult the legislation
under
which
the
governmental agency operates to ascertain
who
has authority to make decisions,
or
1
2
3
Emeritus Professor of Law,
Monash
University.
Ministerfor Aboriginal Affairs v
Peko-Wallsend
Ltd (1986) 162 CLR
24
at
138-139
per
Mason
J.
M
Aronson
and
BDyer,
Judicial
Review
of
Administrative Action (1996)
at
333-347; E I Sykes,
DJLanham, RR S Tracey
and
K W Esser,
General
Principles
of
Administrative
Law
(4th
ed
1997)
ch
3.
O'Reilly vCommissioners
of
the
State
Bank
of
Victoria
(1982) 153 CLR 1
and
cases cited therein.
2
Federal
Law
Review
Volume
27
who
may
be authorised to make decisions. Even
if
aperson does take the trouble to
consult relevant legislative instruments,
and
discovers
that
power
has been vested
in
a
minister
but
can be delegated by the minister,
it
may be very difficult to discover
whether
power
has
in
fact been delegated and,
if
so, to whom.4
Persons
who
have dealt with officials
on
the assumption
that
the latter have the
requisite authority to act are likely to be aggrieved
if,
having been notified
that
a
certain determination has been
made
in their favour, they are then told
that
they
should
disregard the determination because the person
who
made
it
had
no authority
in
the matter. The person
who
has received such acommunication is likely to be
most
aggrieved
if
he
or
she has acted in reliance
on
the prior communication
and
would
suffer some detriment
if
it
is
not
honoured.
The reason,
if
any, offered for repudiation of the
apparent
determination could be
anyone
of the following:
The
person
who
made
the decision
purported
to exercise apower which,
by
law,
could only be exercised by
X,
say
the Minister;
The
person
who
made
the decision could have
made
it
only if he
or
she
had
been a
duly
appointed delegate,
and
he
or
she
was
not
possessed of the requisite
delegated authority
at
the relevant time;
The
person
who
made
the decision exceeded the authority actually delegated to
him
or
her; or
The decision is ultra vires in the sense
that
it
was
not
even one the statutory
repository of the
power
could have made.
The object of this article is to explore the ways
in
which courts have attempted to
resolve problems
of
the kinds described above by principles of ostensible authority
and
closely related principles of estoppel
in
pais,
that is, principles re%arding estoppels
generated
by
representations
about
past
or present states of affairs. The article also
considers the applicability of the so-called "indoor management" rule to the operations
of governmental agencies
and
the presumption of regularity.
AGENCY
AND
DELEGATION
Principles of agency have been developed by the courts principally
in
relation to
transactions governed
by
private law. Principles about delegation
and
sub-delegation
of governmental powers
and
functions are, in contrast, largely principles of public law.
They
have
been developed by courts in the light of fundamental principles of
constitutional law. Questions
about
the delegability of governmental powers
and
about
the validity of acts of those
who
have
purported
to act as delegates usually arise
in
aparticular statutory context.
How
these questions are resolved will often
turn
on
points ofstatutory construction.
Where, for example, astatute has invested aminister
with
apanoply of powers
and
has expressly authorised the minister to delegate some of those powers,
it
would
normally be
presumed
that
the minister has
not
been authorised to delegate the
4
5
Documents
recording
delegations will,
however,
normally
be
accessible
to
members
of
the
public
under
freedom
of
information
legislation.
Principles
of
estoppel
by
representation
are
dealt
with
in
Waltons
Stores
(Interstate) Ltd v
Maher (1988)
164
CLR
387
and
Commonwealth
v
Verwayen
(1990)
170
CLR 394.

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