There is ongoing concern at the misuse and abuse of decisions made under delegation. Whilst there is a requirement for a register of delegations there is no mandatory requirement to maintain or publish a register of decisions made under the instrument of delegations. This leaves the whole system of governance wide open to misuse and abuse. No one knows who and when a decision is made and under what authority the decision had.
Individual Councillors under the terms of the Local Government Act and the Councillors "Code of Conduct" can not direct Council Staff in the performance of their duty or in exercising any decisions made under delegation. It is unclear if that applies to decisions made by the Council as a whole. (Section 76E (3) of LG Act) By inference a Council can direct the CEO to take certain action within some limits.
The power of delegation is limited to expressed delegations made to the Chief Executive Officer, a member of staff and or special committee or advisory board. A person or bodies who have been delegated authority can not further delegate to someone else or another body powers or duties delegated to them. If this is required this would have to be done by way of amending the substantive authority of delegation.
It sounds a bit convoluted but it is designed to ensure that there is a clear line of responsibility and authority. Untangling the web of delegations is an art form unto itself.
Understanding the process is made that much more difficult when decisions are made under delegation and there is no central database or record of those decisions.
We have raised the issue of delegation and the need for a register of decisions made under delegation with the Lord Mayor and Councillor Stephen Mayne, who is chairman of the Council's Governance Portfolio. We hope this issue will be looked into and addressed when the new Council finally gets around to reviewing the register of delegations.
From our past experience this will be one of those last minute decisions that the Council administration will present to the Council at the last minute giving them little time to seriously pick though the list of delegations and understand exactly what powers they are delegating.
A register of decisions made under delegations, if properly designed and implemented, would give Councillors a better understanding and oversight of the delegated process.
Do not hold your breath. Previous Councils have not got around to reviewing the process properly and we do not expect, although we remain hopeful, that this council will get it right either.
Maybe Stephen Mayne will be the one. Somehow I think not.
Another issue but semi related to the question of governance there is a requirement that Council must record and register any "Assembly of Councillors"
Section 3 of the Local Government Act -Definitions, states:
assembly of Councillors
(however titled) means a meeting of an advisory committee of the Council, if at least one Councillor is present, or a planned or scheduled meeting of at least half of the Councillors and one member of Council staff which considers matters that are intended or likely to be-
(a) the subject of a decision of the Council; or
(b) subject to the exercise of a function, duty or power of the Council that has been delegated to a person or committee- but does not include a meeting of the Council, a special committee of the Council, an audit committee established under section 139, a club, association, peak body, political party or other organisation;
It should be noted that there have been a number of assemblies of Councillors that have taken place this term that have not been listed on the City Council's published register But we are noting them and recording the details along with keeping a close eye on Councillor expenses, interstate and overseas travel.
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