Statutory Delegation Gone Wrong: Can We Fix It?
Statutory Delegation Gone Wrong: Can We Fix It?
Wednesday 1 October, 2025
Delegation of statutory powers is a routine feature of government and regulatory practice. A recent Supreme Court decision shows just how unforgiving the law can be if delegation is not done by the book.
Background
An official was charged with corrupt use of official information, an offence under s 105A of the Crimes Act 1961. Under s 106(1), no one may be prosecuted for that offence without the Attorney-General’s leave. By law, the Solicitor-General can exercise that power, and may delegate it to a Deputy Solicitor-General—but only if the Attorney-General has given written consent.
Here, the Acting Deputy Solicitor-General had given consent to prosecute. But the Attorney-General’s written consent to the delegation had never been obtained. Once the defect was discovered (after charges were laid but before trial), the Solicitor-General and Attorney-General tried to correct this with an “instrument of ratification,” retrospectively approving the decision to prosecute.
The Issues Before the Court
Two questions of law were referred to the Supreme Court:
- Could the defect be cured by the instrument of ratification?
- Was the trial at which the official was convicted a nullity?
The Majority
By four to one, the Court held that the defect could not be fixed. The majority emphasised the policy reasons behind requiring the Attorney-General’s leave. To allow retrospective ratification would hollow out that safeguard and undermine the statutory scheme. Because leave had not been lawfully obtained before prosecution commenced, there was “nothing to ratify”. The trial, accordingly, was a nullity. The majority agreed with the Court of Appeal that whether statutory delegations can ever be ratified will depend on the particular statutory context. Even if there is a general power to ratify the unauthorised exercise of a power, it would be limited by the statutory scheme, the principle against sub-delegation, and the rule against retrospective action.
The Dissent
Glazebrook J disagreed. In her view, the de facto officer doctrine—which validates acts of officials acting in apparent good authority despite unknown flaws—applied here. She noted that the Acting Deputy Solicitor-General acted in good faith, was properly qualified, and that the error was discovered well before trial. Even if the doctrine did not apply, she reasoned, the ratification was effective because the charges could have been withdrawn and re-laid at that stage. To declare the trial a nullity was, in her words, “a victory of form over substance”.
Key Takeaways
- Strict compliance is essential: Delegations must meet statutory requirements to the letter. A missing signature can collapse an entire prosecution.
- No general rule on ratification: Both the Court of Appeal and Supreme Court majority declined to say whether statutory delegations can ever be retrospectively validated. It will depend on the statutory context.
- Key takeaway: Anyone exercising delegated statutory powers must confirm that their authority has been properly and formally conferred before acting. The cost of error is high: rectification may not be possible, and litigation to test it may be lengthy and expensive.
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