Essential Practice 4
Bodies exercising coercive powers should ensure they appropriately delegate powers and functions relevant to the exercise of coercive powers. This can include who may issue or vary a summons, who may undertake or be present at interviews, who can take an oath or affirmation from a witness or who can serve a summons. Delegations should be regularly reviewed and aim to clearly state who is covered and the extent of powers they may exercise.
Officers who may exercise any powers should regularly ensure they check the latest delegations -- and where any gaps are apparent, should raise these with the relevant work area.
Context
Delegations are fundamental to ensuring the exercise of a power has a lawful basis. We identified occasions over the last few years where delegations that authorise staff to exercise certain powers, or perform certain actions, lack clarity or do not explicitly cover certain functions. The most significant risk that may arise is where a power is exercised by an undelegated officer. Where that power was used to obtain information under summons, or compel a person to attend for examination, any derivative use of evidence obtained can be affected. This can impact investigations and can mean evidence is disregarded.
While not a coercive power, our latest surveillance devices report on an irregular inspection of IBAC conducted in May to June 2023 discussed an instance dating back to 2021 where some IBAC officers were not sworn in by a delegated person. This affected some functions these IBAC officers could perform during a 12-month period, including a surveillance device application (which was not executed at the time the issue was discovered by IBAC).
Updated