A Littering of Delegations

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Published by Preston Law on 14/02/2023

For those working in local government, particularly in the governance area, the word ‘delegations’ often triggers the flight or fight instinct, with the flight instinct being the more popular choice. Given the multitude of legislation that Councils are responsible for regulating, and thereby delegating to its Officers, this is hardly surprising as anyone who has worked in this space understands the mammoth task that lies ahead.

However, with a number of local governments recently being successful in obtaining State funding for its Illegal Dumping Partnership Program, the State requires that Councils demonstrate their delegations, pursuant to the Waste Reduction and Recycling Act 2011 (“WRR Act”), are current to enable the funding to be secured.

Where do we start?

For those local governments looking to take on these regulatory powers under the WRR Act for illegal dumping for the first time, Council will need to first accept the delegations by way of Council Resolution given by the State pursuant to the ‘Waste Reduction and Recycling (Local Government) Delegation (No 1) 2019’ (“the State Delegation”), which has been delegated by the chief executive under section 263(1)(b) of the WRR Act.

Once Council has resolved to accept the delegations pursuant to the State Delegation, it can also then resolve to delegate those powers to the Chief Executive Officer of Council pursuant to section 257(1)(b) of the  Local Government Act 2009 (“LG Act”).

Instrument of Delegation

Once the CEO of Council has been delegated those powers under the WRR Act for illegal dumping, the CEO will then have the power to sub-delegate those powers to the relevant Officers responsible for enforcing the legislation under section 259(1) of the LG Act.

We recommend to our local government clients that these further delegations are recorded by way of an Instrument of Delegation that clearly sets out the delegated powers under the WRR Act and the limitations that apply to those powers.

Council’s CEO is also required to keep a ‘Register of Delegations’, pursuant to section 260 of the LG Act, that records all delegations by Council and contains the particulars listed in section 305 of the Local Government Regulation 2012 (“LG Regs”).

This Register of Delegations, as it relates to the State Delegation, will also need to be provided to the State as part of securing the State funding.

Instrument of Appointment

A separate and distinct step that is also required is for the CEO to identify who they will appoint as an ‘authorised person’.  This might be the same as the person who is receiving the sub-delegation under section 259(1)(b), but even if it is, the relevant officer will need to be separately ‘appointed’ as an authorised person as long as there are separate powers that only authorised persons are able to perform under the WRR Act.

This is usually recorded by way of an ‘Instrument of Appointment’ that also sets out limitations to the appointment. The State Delegation imposes specific limitations on an authorised person which will need to be included, but Council can also include its own limitations, for example, the appointment will end when the employee’s employment with Council ends.

It is also a requirement that an ‘authorised person’ is issued with an ‘Identity Card’, which identifies them, their position with Council, the legislation they are authorised under, and also requires a signature and expiry date. This will need to be either produced prior to entry being exercised or displayed so that it is clearly visible to the person.

We’re here to help

Here at Preston Law, we have recently been assisting a number of our local government clients in introducing these delegations and authorisations for the first time.

Therefore, if we can assist your Council either specifically with the delegation requirements to secure the illegal dumping funding or more generally with its delegations and authorisations, please get in contact with our local government team at Preston Law.

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