Case: Carltona Ltd v Commissioners of Works [1943] 2 All E R 560 
Outcome: considered
In terms of Australian jurisprudence, the lawfulness in particular circumstances of a practice within public administration of delegates of a responsible Minister or permanent head or equivalent such as the Commissioner authorising subordinates to exercise delegated powers in their name finds recognition at ultimate appellate level in O'Reilly v State Bank of Victoria Commissioners [1983] HCA 47 ; (1982-1983) 153 CLR 1 at 12-14 per Gibbs CJ, Murphy J agreeing in this regard and at 30-33 per Wilson J. It is also the subject of an influential advisory opinion given by Brennan J in his Honour's then capacity as President of the Administrative Appeals Tribunal in Re Reference under Ombudsman Act s 11 (1979) 2 ALD 86. These, in turn, give local recognition to a principle of public law in the United Kingdom in relation to the administration of large Departments of State which has come to be known as "the Carltona principle", so named for a leading authority on the subject in that country, Carltona Ltd v Commissioners of Works [1943] 2 All E R 560. These and other authorities on the subject are helpfully collected and discussed in Aronson, Dyer and Groves, Judicial Review of Administrative Action , 3rd Edition, at pp 310-318. 43 I am relieved from considering whether authorisation in accordance with the Carltona principle was possible at all in relation to the making of a DPO because it was not submitted that the power to make a DPO, though described in Poletti's Case (at 160) as a "severe intrusion into a person's liberty, privacy and freedom of movement", was of such a nature as to require the decision personally to be made by the Commissioner or a delegate. It was accepted by the Appellant that it was permissible for the authorised person to decide to make the DPO with that decision being the act of the delegate. 44 The submission made on behalf of Mr Pattenden was that, accepting that the regime of delegation and authorisation was lawfully possible, it was not permissible for the authorised person, in turn, to consign substantive aspects of the making of the decision to subordinates. It was, rightly, no part of that submission that it was impermissible for an authorised person such as Mr Benson, having made a decision to make a DPO, to consign to a subordinate consequential, wholly procedural, clerical or "ministerial" tasks such as the affixing of a facsimile of the Deputy Commissioner's signature to the DPO or the communication to Mr Pattenden of the making of the DPO. Rather, the submission was that, when one examined the facts of this case, the decision as made and evidenced by the DPO was not that of Mr Benson in all key respects. 51 For the Commissioner, the submission was advanced that, in a relative sense, the assessment debt and the credits which were inserted were minor. That, with respect, is an unattractive submission. Assuming, as the parties have, that the nature of the power to make a DPO admits of the application of the Carltona principle at all, it nonetheless remains a power that entails a serious intrusion on a person's freedom of movement. There is therefore every reason to expect that the non-procedural aspects of the decision will be made only by the authorised officer. Mr Benson never made a decision to make a DPO in respect of the taxation liability specified in the purported DPO of 21 May 2008. The decision to insert a different taxation liability in that order was that of unauthorised subordinates. 52 I have no reason to doubt that, when Mr Sivasubramaniam affixed the Deputy Commissioner's signature to the DPO which issued to Mr Pattenden, he did so in good faith. It was nonetheless not only an insubordinate act but an unauthorised one. In so doing, he presumed that on 21 May 2008, knowing of the further taxation liability and of the credits, Mr Benson would remain of the view that the making of a DPO was appropriate. Like comment may be made in respect of the actions of whomever it was in "Debt Management" who presumed, without authority, to insert into the draft of the DPO liabilities and credits or payments of which Mr Benson was unaware when he made the decision to make a DPO on 21 April 2008. The addition of the additional taxation liability and of the further payments or credits was not a procedural step. Neither, in light of that, was the affixing of the facsimile of the Deputy Commissioner's signature to a DPO in that form. 53 What Mr Benson's subordinates have done is to conflate two features of the DPO regime. Section 14S contemplates the making of a DPO in respect of a taxation liability. It is the amount of that liability which must be inserted into the DPO. Once a DPO has been made: (a) it remains in force until it is revoked or until it is set aside by a court: s 14S(2) of the TAA; and (b) s 14T of the TAA then has effect.