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Library card |
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Title |
Ostensible Authority in Public Law |
Author |
Enid Campbell |
Journal/conference |
Federal Law Review |
Edition |
Volume 27 No 1 |
Publication date |
1999 |
Abstract |
|
| 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.
Even if a statute does not expressly authorise delegations of power, authority to delegate, or to act through the agency of others, may be implied. Whether such authority is implied depends on a range of considerations, among them the nature and purpose of the power, the occasions on which the power is to be exercised and matters to be taken into account in exercise of the power, and the status of the repository of the power. This article explores the ways in which courts have attempted to resolve problems of the kinds described above by principles of ostensible authority and closely related principles of estoppel in pais, that is, principles regarding estoppels generated by representations about past or present states of affairs. The article also considers the applicability of the so-called "indoor management" rule to the operations of governmental agencies and the presumption of regularity. Cases discussed include O'Reilly v Commissioners of the State Bank of Victoria; Paterson v Director-General of Community Welfare Services [1982] VR 883; Attorney-General for Ceylon v AD Silva [1953] AC 461; Lever Finance Ltd v Westminster (City) London Borough Council 53 [1971] 1 QB 222; Western Fish Products Ltd v Penwith District Council [1981] 2 All ER 2024; Jurkovic v Port Adelaide Corporation (1979) 23 SASR 434; Robertson v Minister of Pensions 75 [1949] 1 KB 227; Howell v Falmouth Boat Construction Co 78 [1951] AC 837; Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic 81 (1990) 92 ALR 93. |
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