Welcome to Foundations of Governance in the Australian Public Service
Foundations of Governance has been created to assist agency heads in the Australian
Public Service. It includes links to relevant policies, legislation and agency websites.
The emphasis is primarily on the legislative and related Government policy
obligations of agency heads that apply in the context of agency head responsibility for
managing the agency.
From 1 January 2005 all new primary and subordinate legislation that is made will be
published on ComLaw , not to SCALEplus . However, SCALEplus will continue to
be available to users until all relevant material, including historical material, is
migrated to ComLaw. Until this process is complete, you may need to visit
SCALEplus in order to access the contents of: all historical databases; Statutory Rules
that are not in force; and the legislation of the non-self-governing Territories.
Foundations is updated quarterly. The latest update was July 2006.
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Protection of the Commonwealth against crime
Information supplied by:
 Attorney-General's Department
To protect their agencies from criminal conduct, it is important for agency heads to be aware
of the behaviours that may constitute criminal offences against the Commonwealth.
Criminal Code Act
 Criminal Code Act 1995
The Criminal Code Act 1995 (incorporating the Criminal Code) provides an integrated
statement of the major offences against Commonwealth law and codifies the general
principles of criminal responsibility. The principles apply to all Commonwealth offences
whether or not they are included in the Criminal Code Act. Agency heads should be aware of
the concepts set out in the Criminal Code Act, in particular those criminal offences relating to
the proper administration of Government.
The Criminal Code Act also sets out a range of offences, including theft, fraud, abuse of
public office, bribery and unauthorised access to, or modification of, restricted data held in a
Commonwealth computer to which access is restricted by an access control system.
Crimes Act:
 Crimes Act 1914
Unauthorised disclosure of official information may breach section 70 of the Crimes Act
1914, which makes it an offence for a Commonwealth officer to publish or communicate any
fact or document where they are unauthorised. Section 79 of the Act deals with official
secrets.
Financial Management and Accountability Act:
 Financial Management and Accountability Act 1997
There are a number of provisions in the Financial Management and Accountability Act 1997
that carry criminal penalties for non-compliance. For example, section 11, requiring that
officials or Ministers deposit public money in an official account, carries a maximum penalty
of 7 years’ imprisonment. Section 14 also carries a maximum penalty of 7 years’
imprisonment, and relates to the misapplication or improper use of public money. Section 60
provides that use by officials or Ministers of Commonwealth credit cards or numbers other
than for the Commonwealth carries the same maximum penalty.
Enforcement and prosecution:
 The Australian Federal Police
 Commonwealth Director of Public Prosecutions
 Prosecution Policy of the Commonwealth
The Australian Federal Police (AFP) enforces Commonwealth criminal law, and protects
Commonwealth and national interests from crime in Australia and overseas. The AFP is
Australia's international law enforcement and policing representative, and the chief source of
advice to the Australian Government on policing issues.
The primary role of the Commonwealth Director of Public Prosecutions (DPP) is to prosecute
offences against Commonwealth law, including the Corporations Act 2001, and to recover the
proceeds of crime. The DPP is not an investigative body and can prosecute only when there
has been an investigation by the AFP or another investigative agency.
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Authorisation and delegation
Information supplied by:
 Attorney-General's Department
When Parliament creates a statutory power it vests that power in some individual or
body who is then able to exercise it. Power can be vested in a person holding an
existing office in the Executive Government, for example, the Governor-General, a
Minister or the secretary of a department. When Parliament vests power in a person
that person is generally required to exercise the power personally. However, the
person or body in which Parliament directly vests a power can designate another
person to exercise that power where there is:
 an express power to delegate or
 an implied power to authorise.
Express power to delegate:
 Acts Interpretation Act 1901
Legislation may provide a statutory procedure for the designation of a person who
may exercise a power. This most commonly takes the form of an express power of
delegation, but sometimes takes other forms, for example, the appointment of a
person as an authorised officer.
Most of the fundamental principles concerning delegation have been codified (see
Acts Interpretation Act 1901, section 34AA, section 34AB and section 34A). These
principles include:
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the person to whom a power is delegated under an express power of delegation (for
example, by the Minister or agency head) must exercise the delegated power by
applying his or her own discretion
the person to whom power is delegated acts in his or her own legal capacity, not as an
agent for the delegator
a person in whom a power is vested may, under an express power of delegation,
delegate part of that power
generally, if Parliament vests power in a particular person, it is for that person to
exercise the power or, if there is an express power of delegation, it is for the person to
choose which other persons may exercise the power
the delegator can still exercise a power which has been delegated
some powers are not able to be delegated because, for example, there is an express
exception to the delegation power or because Parliament intended the power to be
exercised personally
the power to revoke or change a delegation is exercised in the same manner as the
power to make the delegation;
legislation that confers an express power of delegation on a person usually requires
that power to be exercised in writing by making a written instrument
an express power of delegation does not have to be exercised in favour of a
nominated individual but may be exercised by reference to a person from time to time
holding a specified office or position, provided that the delegate can be identified
with sufficient certainty
a delegation does not cease to have effect when the person who gives the delegation
ceases to hold office or
as a delegate literally acts in his or her own name, a delegate signs documents in his
or her own name as a delegate of the delegator.
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Implied power to authorise:
 Australian Government Solicitor, Legal Practice Briefing No 74 (14 December
2004). Note that this is freely accessible to registered clients at
www.ags.gov.au
A person in whom a statutory power is vested may, in some circumstances, be able to
rely on an implied power to authorise an official to exercise the statutory power on the
person’s behalf.
Fundamental principles relating to the power of a person to authorise include:
 a person authorised to act for another does so as the agent or alter ego of the
person in whom the power is vested. Therefore the act of the authorised person
is, at law, the act of the person in whom the power is vested (unlike the act of
a delegate which, at law, is the delegate’s, and the not the delegator’s)
 a person may authorise another to exercise a power for and on his or her
behalf (for example, an agency head in whom powers are vested can authorise
more junior employees to exercise those powers for and on their behalf)
 a power to authorise cannot be implied if Parliament intends a power be
exercised personally
 issues concerning administrative necessity (such as the volume of decision
making a department has) may be a factor in determining whether an
authorisation can be implied
 the presence or absence of an express power of delegation does not mean a
power to authorise cannot be implied;
 the nature of the power (for example, whether the rights of individuals are
affected) can be a relevant consideration in determining whether a power to
authorise can be implied
 an authorisation, unlike a delegation, ceases to have effect when the person
who gives the authorisation ceases to hold office
 a person acting on another’s behalf under an authorisation acts in the name of
the holder of the power and as such would execute documents either by
affixing a facsimile signature of the holder of the power or by signing for that
person. Strictly speaking, it is not necessary for a person acting under an
authorisation to include his or her own name but it is good administrative
practice to do so.
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