41 Delegation of functions or powers

(1)

A Public Service chief executive may, either generally or particularly, delegate in writing to a person described in subsection (1A) or (2A) any of the functions or powers of the chief executive under this Act or any other Act (including functions or powers delegated to the chief executive under this Act or any other Act), except that—

(a)

the delegation of functions or powers delegated to the chief executive by a Minister requires the prior written approval of that Minister; and

(b)

the delegation of functions or powers delegated to the chief executive by the Commissioner requires the prior written approval of the Commissioner.

(1A)

The following persons may be a delegate under subsection (1) or a subdelegate under subsection (2):

(a)

another Public Service chief executive:

(b)

a Public Service employee:

(c)

an individual working in the Public Service as a contractor or as a secondee from elsewhere in the State services in relation to a function or power of the Public Service:

(d)

the holder for the time being of any specified office in the Public Service.

(2)

A person to whom a function or power has been delegated under subsection (1) by a chief executive may, with the prior written approval of that chief executive, subdelegate the function or power to any other person described in subsection (1A).

(2A)

A Public Service chief executive may delegate under subsection (1) a clearly identified function or power to a person outside the Public Service (whether or not the person is within the State services), but only after—

(a)

obtaining the appropriate Minister’s prior written approval; and

(b)

satisfying himself or herself that any potential conflicts of interest will be avoided or managed.

(2B)

However, a delegate described in subsection (2A) may not subdelegate the delegated power or function under subsection (2).

(2C)

A delegation described in subsection (2A) must be noted, with a description of how effectively the delegated function or power was performed or exercised,—

(a)

in the case of a delegation made by the chief executive of a department, in the annual report of that department; or

(b)

in the case of a delegation made by the chief executive of a departmental agency, in the annual report of that departmental agency.

(2D)

A delegate described in subsection (2A) must comply with the following obligations in relation to the performance of a delegated function or the exercise of a delegated power (in the same way as a delegate described in subsection (1A) must comply with them):

(a)

all relevant statutory obligations; and

(b)

all relevant obligations in a code of conduct set by the Commissioner under section 57(2).

(2E)

Any information held by a delegate described in subsection (2A) in relation to the performance of a delegated function or the exercise of a delegated power is, for the purposes of the Official Information Act 1982 (see section 2(5) of that Act), deemed to be held by,—

(a)

in the case of a delegation made by the chief executive of a department, that department; or

(b)

in the case of a delegation made by the chief executive of a departmental agency, the host department of that departmental agency.

(2F)

In relation to the performance of a delegated function or the exercise of a delegated power, the Ombudsmen Act 1975 and the Official Information Act 1982 apply to a delegate described in subsection (2A) as if the delegate were an organisation named in Schedule 1 of the Ombudsmen Act 1975.

(3)

Subject to any general or special directions given or conditions imposed by the chief executive, the person to whom any functions or powers are delegated under this section may exercise those functions or powers in the same manner, subject to the same restrictions, and with the same effect as if they had been conferred on that person directly by this Act and not by delegation.

(4)

The power of the chief executive to delegate under this section—

(a)

is subject to any prohibitions, restrictions, or conditions contained in any other Act in relation to the delegation of the chief executive’s functions or powers; but

(b)

shall not limit any power of delegation conferred on the chief executive by any other Act.

(4A)

Where a written document is used to inform a person of an action taken by a delegate described in subsection (2A), the document must—

(a)

state that the action was taken by a delegate outside the Public Service; and

(b)

give the delegate’s name and office; and

(c)

state that a copy of the instrument of delegation may be inspected at the chief executive’s office.

(5)

Every person purporting to act pursuant to any delegation under this section shall, in the absence of proof to the contrary, be presumed to be acting in accordance with the terms of the delegation.

(6)

Any delegation under this section may be made to a specified person or to persons of a specified class, or to the holder or holders for the time being of a specified office or specified class of offices.

(7)

No such delegation shall affect or prevent the exercise of any function or power by the chief executive, nor shall any such delegation affect the responsibility of the chief executive for the actions of any person acting under the delegation.

Section 41(1): replaced, on 18 July 2013, by section 37(1) of the State Sector Amendment Act 2013 (2013 No 49).

Section 41(1A): inserted, on 18 July 2013, by section 37(2) of the State Sector Amendment Act 2013 (2013 No 49).

Section 41(2): replaced, on 18 July 2013, by section 37(3) of the State Sector Amendment Act 2013 (2013 No 49).

Section 41(2A): inserted, on 18 July 2013, by section 37(4) of the State Sector Amendment Act 2013 (2013 No 49).

Section 41(2B): inserted, on 18 July 2013, by section 37(4) of the State Sector Amendment Act 2013 (2013 No 49).

Section 41(2C): inserted, on 18 July 2013, by section 37(4) of the State Sector Amendment Act 2013 (2013 No 49).

Section 41(2D): inserted, on 18 July 2013, by section 37(4) of the State Sector Amendment Act 2013 (2013 No 49).

Section 41(2E): inserted, on 18 July 2013, by section 37(4) of the State Sector Amendment Act 2013 (2013 No 49).

Section 41(2F): inserted, on 18 July 2013, by section 37(4) of the State Sector Amendment Act 2013 (2013 No 49).

Section 41(3): amended, on 18 July 2013, by section 37(5) of the State Sector Amendment Act 2013 (2013 No 49).

Section 41(4A): replaced, on 5 December 2013, by section 4 of the State Sector Amendment Act (No 2) 2013 (2013 No 133).