Today’s question comes from
… a CFA volunteer … wondering if you can clarify for a layperson what a “written instrument” may mean in reference to CFA Act & Regs.?
I refer specifically to Regulation 49 which does not appear to allow the Chief Officer to delegate his power to conduct a hearing, but I have also seen S6(2) suggests that the CO can by written instrument delegate his powers under the act or regs.
In what form might a written instrument take? Should this be formally declared at a hearing?
Interested if you can clarify?
Regulation 49(1) of the Country Fire Authority Regulations 2014 (Vic) says ‘The Chief Officer must, not less than 21 days before the day set for the hearing of a charge, give written notice of the time, date and place of the hearing…’ and, at subsection (3):
The Chief Officer must hear the charge (unless the Chief Officer decides to dismiss the charge without a hearing) and—
(a) dismiss the charge; or
(b) find the charge proven and impose one or more of the penalties referred to in regulation 45.
There is no specific power to delegate but there does not need to be. The Country Fire Authority Act 1958 (Vic) s 28 says:
The Chief Officer may, by written instrument, delegate to any person by name or to the holder of an office or position approved by the Authority, either generally or as otherwise provided by the instrument, any power or authority conferred on the Chief Officer under this Act or the regulations or any other Act or regulations, except—
(c) this power of delegation.
The Chief Officer can delegate his or her powers and functions with respect to a disciplinary hearing (see also Interpretation of Legislation Act 1984 (Vic) ss 42 and 42A).
A written instrument is exactly what it says, something in writing. It could be a standing order (eg where a delegation is made to officers of a certain rank or position) or a letter addressed to the delegate. A written instrument means it has to be done in writing, nothing more.
In terms of a hearing, a person subject to the hearing could ask the person conducting the hearing to provide the written instrument that allows them to act as the Chief Officer’s delegate if that has not already been provided as part of the pre-hearing process.