Delegation of functions or powers by public service chief executives

05 May 2023

 Schedule 6 clause 2 of the Public Service Act 2020 (the Act) enables Public Service chief executives to delegate statutory functions or powers.  This allows chief executives to delegate to those best-suited to exercise the function or power in the circumstances, to optimise service delivery and decision-making and to support the policies of the government of the day.  

This document provides an overview of the statutory framework for this power of delegation to help chief executives and agencies navigate the provisions.  

This document is not legal advice. Chief executives and agencies should seek specific legal advice about how and when to make delegations under the Act.  

General principles  

Who can delegate under schedule 6 clause 2? 

Delegations under this provision are limited to Public Service chief executives (chief executives of departments, departmental agencies and functional chief executives).  

An interdepartmental executive board or a board of an interdepartmental venture can also delegate under schedule 6 clause 2, as if they were a chief executive (ss 27(1)(d) and 34(d) of the Act). Boards should be clear that they are delegating a function or power of the board itself, rather than a function or power of an individual member chief executive.   

Certain recipients of a delegation (within the Public Service) can subdelegate the function or power. A subdelegation requires prior written approval from the relevant chief executive (cl 2(3)).  

Limitations on chief executives’ delegation powers 

Chief executives have a wide scope to delegate any functions or powers under the Act or another enactment, including functions or powers that have been delegated to the chief executive (cl 2(1)).  Chief executives will use their discretion and judgement to determine the appropriate level of delegations for their agency. 

However, there are two general limitations on chief executives’ delegation powers:  

  • If the chief executive proposes to delegate functions or powers that have been delegated to that chief executive by a Minister, the Minister must give prior approval (cl 2(2)(a)).  
  • If the chief executive proposes to delegate functions or powers that have been delegated to the chief executive by the Public Service Commissioner, the Commissioner must give prior approval (cl 2(2)(b)).  

The power to delegate or subdelegate is also subject to any prohibitions, restrictions, or conditions in legislation relating to the chief executive’s functions or powers (cl 2(11)(a)). For example, section 33 of the Serious Fraud Office Act 1990 refers to a range of powers that may be delegated only to designated members of the Serious Fraud Office. Similarly, section 10 of the Corrections Act 2004 lists a range of powers that the chief executive must not delegate to any staff member of a prison. These restrictions cannot be overridden by a schedule 6 clause 2 delegation.  

Chief executives may have powers of delegation under various other statutory regimes. Schedule 6 clause 2 does not limit a power of delegation conferred on the chief executive by an enactment (cl 2(11)(b)).  

Delegations can only be given in writing (cl 2(6)), which can include email.  They may be revoked in writing at any time (cl 4). 

Limitations for delegates and subdelegates 

Delegations are subject to any directions or conditions imposed by the chief executive (cl 2(10)).  

In setting conditions on financial delegations, chief executives should consider how they will ensure they can comply with instructions from the Treasury and other requirements regarding public financial management, such as the guidelines and requirements set out in the Cabinet Office circular CO (18) 2: Proposals with Financial Implications and Financial Authorities and Treasury instructions relating to the processes and controls for departmental financial decision-making.  

Delegates and subdelegates must also comply with all relevant statutory obligations and all relevant obligations in minimum standards of conduct and integrity set by the Public Service Commissioner (cl 2(9)).  

Delegates or subdelegates are presumed to be acting in accordance with the terms of the delegation or subdelegation in absence of proof to the contrary (cl 2(13)).  

Chief executive responsibility 

Chief executives retain responsibility for performance of statutory functions and the actions of a person acting under a delegation or subdelegation. A delegation or subdelegation does not prevent the chief executive from also exercising the power or performing the function (cl 2(15)).  

Types of delegations 

Delegations inside the Public Service  

The following individuals or officeholders may be delegates or subdelegates inside the Public Service: 

  • Another Public Service chief executive (cl 2(4)(a)). This means a chief executive of a department or departmental agency or a functional chief executive (s 5 of the Act). An interdepartmental executive board, or a board of an interdepartmental venture can also be a delegate or subdelegate (ss 27(1)(d) and 34(d) of the Act).  
  • A Public Service employee (cl 2(4)(b)). This means an employee of a department or an employee of an interdepartmental venture (and includes those employees of a host or servicing department working in a departmental agency or for an interdepartmental executive board) (s 65 of the Act). A delegation can therefore be made to Public Service employees outside that chief executive’s agency.  
  • An individual working in the Public Service as a contractor or as a secondee from elsewhere in the State services (cl 2(4)(c)). This subclause is restricted to contractors or secondees who have been engaged in relation to a function of the Public Service:  
    • This could include a contractor acting as a general manager with financial or human resources responsibilities deriving from the chief executive’s functions and powers under the Act, or other statutes, such as the Public Finance Act 1989. Conversely, an electrician called in to fix agency equipment is unlikely to be a potential delegate, as this engagement is not related to a function of the Public Service.  
    • The ability to delegate to contractors under this clause does not affect the general power to contract. For example, an agency can still engage a consultancy firm to design a new process, without providing any delegations to the company or its employees.  
    • The policy intention is that the term ‘contractor’ covers both:  
      • People directly engaged by the agency on a contract for services; and  
      • People employed by a contractor (such as a consultancy firm) and deployed in the agency (noting that the delegates should be clearly identifiable by name or role).
  • The holder of a specified office in the Public Service (cl 2(4)(d)). A holder of a specified office is not equivalent to a statutory officer.  

Delegations outside the Public Service  

Chief executives may delegate to a person outside the Public Service (cl 2(5)), such as to individuals or officeholders in the wider public sector or the private sector.  

This could include delegating to a corporate entity (such as a company) if the meaning of “person” in the Interpretation Act 1999 is applied, but specific legal advice should be taken on this point. However, it may be more appropriate for the chief executives to delegate to specific individuals or a class of employees or officers within the corporate entity, rather than the entity itself.  

Delegations outside the Public Service are subject to restrictions and controls:  

  • The appropriate Minister’s approval is required and the chief executive must be satisfied that any potential conflicts of interest will be avoided or managed (cl 2(5)).  Chief executives should address conflicts of interest matters explicitly in their advice to the Minister seeking approval to delegate.   
  • Only a “clearly identified function or power” may be delegated to an outside person (cl 2(5)). A delegation should specify: the subject matter of the delegation, any statutory basis for the delegated function or power, any appropriate directions or conditions on the exercise of the delegation, any appropriate time periods for the exercise of the delegated function or power, and other details that assist with clearly identifying the nature and scope of the delegation.  It is also helpful to set out in the delegation a record of the other restrictions on the delegate described below. 
  • An outside delegate cannot subdelegate (cl 2(7)).  
  • An outside delegate must comply with all relevant statutory obligations, and all relevant obligations in minimum standards of conduct and integrity set by the Public Service Commissioner (cl 2(9)).  
  • A document that is used to inform a person of an action taken by an outside delegate must state that the action was taken by the delegate outside the Public Service and (if relevant) the State services, the delegate’s name and office, and that a copy of the delegation instrument may be inspected at the chief executive’s office (cl 2(12)).  
  • Information held by an outside delegate is deemed to be held by the department, departmental agency, or host department, for the purposes of the Official Information Act 1982 (cl 3(1)).  
  • The Official Information Act and the Ombudsmen Act 1975 apply to an outside delegate. The delegate must meet the obligations imposed by these statutes to the extent that they relate to the performance of the delegated function or power (cl 3(2)). Delegations should specify the arrangements that the parties will use to deal with official information requests and similar information management matters.  
  • An outside delegation must be noted by the chief executive in the annual report of the department, departmental agency, or (for functional chief executives) the host department, with a description of an assessment of how effectively the delegated function or power was performed or exercised (cl 2(8)). The chief executive may require the delegate, under cl 2(10), to supply all appropriate information for the purpose of monitoring the delegation and reporting on it.  

Legal professional privilege 

If a chief executive anticipates that a delegate will need legal advice or representation relating to the exercise of the power or function:  

  • The chief executive should state specifically in the delegation how the advice should be obtained, and consider directing the delegate as to who will supply those legal services (noting that Crown Law must be instructed in relation to certain matters); and 
  • The delegate should be advised not to disclose any legal advice that he or she receives on behalf of the Crown without the permission of the Attorney-General.  

Chief executives and agencies should seek specific legal advice on the position of legal privilege where the delegate seeks legal advice by their own initiative, or independently of performance of the function.  

Cabinet’s statement on legal professional privilege is available in the Cabinet Manual.  

Further information 

Please contact Rōpū Taha Ture | Legal Services Group at Te Kawa Mataaho Public Service Commission at enquiries@publicservice.govt.nz for further assistance.