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Ostensible Authority in Public Law

Published online by Cambridge University Press:  24 January 2025

Enid Campbell
Enid Campbell*
Affiliation:
Monash University
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Extract

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 a provision 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.

Type
Research Article
Information
Federal Law Review , Volume 27 , Issue 1 , March 1999 , pp. 1 - 17
Copyright
Copyright © 1999 The Australian National University

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References

1 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 138-139 per Mason J.

2 M Aronson and B Dyer, Judicial Review of Administrative Action (1996) at 333-347; Sykes, E I Lanham, D J Tracey, R R S Esser, K W General Principles of Administrative Law (4th ed 1997) ch 3Google Scholar.

3 O'Reilly v Commissioners of the State Bank of Victoria (1982) 153 CLR 1 and cases cited therein.

4 Documents recording delegations will, however, normally be accessible to members of the public under freedom of information legislation.

5 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.

6 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 38-39 per Mason J.

7 For example, officers of a particular department or persons holding a designated office.

8 (1982) 153 CLR 1.

9 Gibbs CJ, Murphy and Wilson JJ.

10 (1982) 153 CLR 1 at 16-21.

11 The decision was followed by a Full Court of the Supreme Court of South Australia in Deputy Commissioner of Taxation v Saddler (1982) 34 SASR 254. Sangster J (at 263) said he had difficulty in extracting a ratio decidendi. For a critical analysis of the case see M L Dixon, “Delegation, Agency and the Alter Ego Rule” (1987) 11 Syd LR 326. See also Bayne, P, “Delegation, agency and just assisting” (1988) 62 ALJ 721Google Scholar.

12 Woollett v Minister of Agriculture and Fisheries [1955] 1 QB 103 at 120, 132, 134; Re Reference under s 11 of the Ombudsman Act for an Advisory Opinion (1979) 2 ALD 86 at 94 per Brennan J (AAT); O'Reilly v Commissioners of the State Bank of Victoria (1982) 153 CLR 1 at 18 per Mason J; cf deSmith, S A, Woolf, Lord Jowell, J, Judicial Review of Administrative Action (5th ed 1995) 362Google Scholar.

13 Nashua Australia Pty Ltd v Channon (1981) 36 ALR 215; Broadbridge v Stammers (1987) 76 ALR 339.

14 Huth v Clarke (1890) 25 QBD 391; Manton v Brighton Corporation [1951] 2 KB 391. This rule is sometimes given statutory expression: eg, Acts Interpretation Act 1901 (Cth), s 34AB(d).

15 Campbell, E, “Revocation and Variation of Administrative Decisions” (1996) 22 Mon LR 30 at 64-67Google Scholar.

16 Davison v Vickery's Motors Pty Ltd (1925) 37 CLR 1 at 21 per Isaacs J; Hughes v NM Superannuation Pty Ltd (1993) 29 NSWLR 653 at 665 per Sheller JA.

17 Hughes v NM Superannuation Pty Ltd (1993) 29 NSWLR 653 at 665 per Sheller JA.

18 M Aronson and B Dyer, above n 2 at 344-345; E I Sykes, D J Lanham, R R S Tracey and K W Esser, above n 2 at paras 354-357.

19 M Aronson and B Dyer, above n 2 at 345.

20 E I Sykes, DJ Lanham, RR S Tracey and KW Esser, above n 2 at para 355.

21 The classic statement of principles by Diplock LJ in Freeman and Lockyer v Buckhurst Park Properties (Mangal) Ltd [1964] QB 480 at 503 was endorsed by the High Court of Australia in Crabtree-Vickers Pty Ltd v Australian Direct Mail Advertising and Addressing Co Ltd (1975) 133 CLR 72 and Northside Developments Pty Ltd v Registrar-General (1990) 170 CLR 146. The common law principles have been modified by the Corporations Law (Cth), ss 128-129 as amended by the Company Law Review Act 1998 (Cth).

22 Northside Developments Pty Ltd v Registrar-General (1990) 170 CLR 146 at 159 per Mason CJ,at 177-178 per Brennan} and at 198-199 per DawsonJ.

23 Ibid at 173-174 per Brennan J.

24 Ibid at 172 per Brennan J.

25 Ibid at 159-160 per Mason CJ, at 174-175 per Brennan J and at 192 per Dawson J. This requirement has been abolished by the Corporations Law (Cth), s 125 as amended by the Company Law Review Act 1998 (Cth), in relation to companies as defined ins 9.

26 Ibid at 172 per Brennan J.

27 Ibid at 154 and 164 per Mason CJ, at 178 and 181 per Brennan J and at 212 per Gaudron J.

28 Ibid at 172 per Brennan J and at 212 per Gaudron J.

29 The law is reviewed by Gummow J in Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 92 ALR 93. See also Minister for Immigration and Ethnic Affairs v Polat (1995) 37 ALD 394 (Full FC) and Thomson, J, “Estoppel by Representation in Public Law” (1998) 26 FL Rev 83Google Scholar.

30 (1875) LR 7 HL 869 at 894.

31 (1856) 6 EI & Bl 377; 119 ER 886.

32 Northside Developments Pty Ltd v Registrar-General (1990) 170 CLR 146 at 155 per Mason CJ and at 176 per Brennan J.

33 Ibid at 154-155 per Mason CJ.

34 Ibid at178-179 per Brennan} and at207 per Toohey J.

35 (1990) 170 CLR 146 at 210-211.

36 Ibid at 213.

37 Ibid at 198 per Dawson J and at 207 per Toohey J.

38 Ibid at 176.

39 Meaning “all that is done is presumed to be done lawfully”.

40 (1990) 170 CLR 146 at 177.

41 Ibid at 176.

42 Ibid at 176-177.

43 Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 at 164 per McHugh JA.

44 Pertl v Kahl (1976) 13 SASR 433 and cases therein cited and Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154.

45 [1982] VR 883.

46 Lush J did not refer to the possible application of principles of estoppel.

47 For example, the power to issue licences to engage in activities which have been prohibited by statute except under licence.

48 Seddon, N, Government Contracts: Federal, State and Local (1995) ch 6Google Scholar.

49 Crown proceedings legislation ensures that Crown liability for breach of contract will normally be determined with reference to private law: eg, Judiciary Act 1903 (Cth), s 64.

50 [1953] AC 461.

51 The Judicial Committee stated (ibid at 479) as “a simple and clear proposition that a public officer has not by reason of the fact that he is in the service of the Crown the right to act for and on behalf of the Crown in all matters which concern the Crown. The right to act for the Crown must be established by statute or otherwise”.

52 Ibid at 480-481.

53 [1971] 1 QB 222.

54 Town and Country Planning Act 1964 (UK), s 64.

55 (1971] 1 QB 222 at 231. Denning MR invoked the “indoor management'' rule.

56 Ibid at 233-234.

57 Craig, P P, Administrative Law (3rd ed 1994) at 338 and 656Google Scholar.

58 Wade, H W R Forsyth, C, Administrative Law (7th ed 1994) at 373-374Google Scholar.

59 (1976) 75 LGR 285.

60 (1981] 2 All ER 2024. The Court's judgment was delivered in May 1978.

61 (1981] 2 All ER 204 at 221.

62 [1971) 1 QB 222 at 231.

63 [1981) 2 All ER 204 at 220.

64 Ibid.

65 Ibid.

66 Ibid at 221.

67 Ibid.

68 (1979) 23 SASR 434.

69 Ibid at 440.

70 Ibid at 440-441.

71 Ibid at 443.

72 Ibid.

73 Ibid at 443-453.

74 Provisions in statutes on interpretation of legislation may contain provisions which specify who is vested with statutory power at a particular time: eg, Acts Interpretation Act 1901 (Cth), ss 34A, 34AA and 34AB.

75 [1949] 1 KB 227.

76 Ibid at 231.

77 Ibid at 232.

78 [1951] AC 837 at 845 and 849.

79 Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 92 ALR 93 at 114-115 per Gummow J.

80 Campbell, E, “De Facto Officers” (1994) 2 AJ Admin L 5Google Scholar.

81 (1990) 92 ALR 93.

82 Ibid at 113.

83 Ibid at 114.