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2.4   What is the legal authority to charge?

A public entity must have legal authority to charge for goods or services.

The authority will be in an Act of Parliament. The legislation will usually include an empowering provision that authorises the entity or the Governor-General to set the amount through regulation. Acting without legal authority may lead to one of the review procedures outlined in section 1.4.

Before deciding the type or level of charges, clearly identify and understand the scope and any constraints or limitations of the empowering legislative provision. Empowering provisions can vary greatly including factors such as:

  • whether charging is required or discretionary
  • prescriptions about the process that must be followed
  • the type of charges that can be used (eg, a fee or a levy)
  • specific definitions of key terms, such as 'efficiency'
  • what types of costs can be recovered (for example, some may allow recovery of costs related to policy advice while others don't), and
  • any other options for cost recovery (for example, the extent to which methods such as differential pricing are permissible).

You should consult your legal team early in the process to ensure that there is legal authority for the proposed charge and that the correct process is followed.

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