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Delegata potestas non potest delegari
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Delegata potestas non potest delegari
Delegata potestas non potest delegari is a principle in constitutional and administrative law that means in Latin that "no delegated powers can be further delegated". Alternatively, it can be stated delegatus non potest delegare ("one to whom power is delegated cannot himself further delegate that power").
The principle is present in several jurisdictions such as that of the United States, the United Kingdom and India as well as in Catholic canon law.
In Australia the maxim has been largely superseded by statute and common law. There is a long line of authorities applying the Carltona principles to Australia.
However, courts have found that where a statute expressly requires a personal action, such delegation is not possible.
In Dooney the High Court of Australia (Callinan J), observed that "No permanent head of a department in the Public Service is expected to discharge personally all the duties which are performed in his name and for which he is accountable to the responsible Minister."
This case law has been backed up by legislation. Section 34AA and 34AAB of the federal government's Acts Interpretation Act 1901 clearly create a statutory power to delegate, contrary to the maxim. The federal legislation is echoed in some state legislation.
Section 34AB(1)(b), however, prohibits a delegate to further delegate; consequently a Minister delegating to a Secretary does not allow the Secretary to delegate to an Assistant Secretary. Vestiges of the maxim have therefore been preserved by the Act.
The principle was summarised in Canada in 1943, in an article in the Canadian Bar Review by John Willis. While it is acknowledged as "the seminal articulation of the law governing the subdelegation of statutory and discretionary powers" and it is still often cited, it has not achieved the rigid standing that was originally intended. The maxim has had some success as an operating principle in the restriction of delegation of legislative and judicial powers, but the demands of modern governmental regulatory practices have inhibited its application in the delegation of administrative powers. Exceptions are rare and dependent on the statute conferring power.
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Delegata potestas non potest delegari
Delegata potestas non potest delegari is a principle in constitutional and administrative law that means in Latin that "no delegated powers can be further delegated". Alternatively, it can be stated delegatus non potest delegare ("one to whom power is delegated cannot himself further delegate that power").
The principle is present in several jurisdictions such as that of the United States, the United Kingdom and India as well as in Catholic canon law.
In Australia the maxim has been largely superseded by statute and common law. There is a long line of authorities applying the Carltona principles to Australia.
However, courts have found that where a statute expressly requires a personal action, such delegation is not possible.
In Dooney the High Court of Australia (Callinan J), observed that "No permanent head of a department in the Public Service is expected to discharge personally all the duties which are performed in his name and for which he is accountable to the responsible Minister."
This case law has been backed up by legislation. Section 34AA and 34AAB of the federal government's Acts Interpretation Act 1901 clearly create a statutory power to delegate, contrary to the maxim. The federal legislation is echoed in some state legislation.
Section 34AB(1)(b), however, prohibits a delegate to further delegate; consequently a Minister delegating to a Secretary does not allow the Secretary to delegate to an Assistant Secretary. Vestiges of the maxim have therefore been preserved by the Act.
The principle was summarised in Canada in 1943, in an article in the Canadian Bar Review by John Willis. While it is acknowledged as "the seminal articulation of the law governing the subdelegation of statutory and discretionary powers" and it is still often cited, it has not achieved the rigid standing that was originally intended. The maxim has had some success as an operating principle in the restriction of delegation of legislative and judicial powers, but the demands of modern governmental regulatory practices have inhibited its application in the delegation of administrative powers. Exceptions are rare and dependent on the statute conferring power.