Subsidiary Legislation PDF

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Subsidiary Legislation Sec. 3, Interpretation Act 1967: Subsidiary legislation is any proclamation, rule, regulation, order, notification, bye-law, or other instrument made under any Act, enactment, Ordinance, or other lawful authority, and having legislative effect. - Every order, notification, bye...

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Subsidiary Legislation Sec. 3, Interpretation Act 1967: Subsidiary legislation is any proclamation, rule, regulation, order, notification, bye-law, or other instrument made under any Act, enactment, Ordinance, or other lawful authority, and having legislative effect. -

Every order, notification, bye-law or other instrument made is considered subsidiary legislation only if it has legislative effect. If it is not legislative in nature, it is regarded as an administrative order.

Differences between subsidiary legislation and administrative order: -

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Subsidiary legislation must be published in the official gazette, but not administrative order. Procedural differentiation in making the order: - Subsidiary legislation must follow procedures prescribed in the Parent Act - Administrative order is dependent on whether the decision-maker follows the principle of natural justice or fairness. Application: - Subsidiary legislation is normally of general application - Administrative order is of specific cases and not general application

Requirements to be fulfilled before subsidiary legislation can be legislated: -

Legislative body must confer or delegate legislative power to the executive body Delegation of legislative power is made through an Act of Parliament or Parent Act Legislative power can be delegated to a person or a body Delegation of power is confined to matters of detail only; matters of policy are legislated by the Parliament itself.

Judicial control: -

The court can review the validity of the subsidiary legislation by applying the doctrine of ultra vires. Through this doctrine, any subsidiary legislation may be declared void on several grounds:

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Unconstitutionality Where the Parent Act is ultra vires the Constitution: - If the Parent Act is in itself unconstitutional, the subsidiary legislation made under the Parent Act will automatically become unconstitutional. - Hilman v Govt of Malaysia: The court held that Sec. 15 of the Parent Act was ultra vires the Constitution, and thus, all law made under the section was null, void, and unconstitutional. - Johnson Tan Han Seng v PP: Where the validity of the Essential (Security Cases) Regulation 1975 was challenged on the ground that the Emergency (Essential Powers) Ordinance 1969 was unconstitutional as it has lapsed and ceased to be a law by the affliction of time and changed circumstances, thus rendering the regulation made thereunder unconstitutional.

However, Suffian LP: It was a matter for the executive to decide whether a proclamation of emergency should or should not be terminated. -

Where the subsidiary legislation is ultra vires the Constitution: - The court will strike down any subsidiary legislation if it comes into conflict with, or does not conform to, a constitutional provision. - Osman v PP: The Emergency (Criminal Trial) Regulation made by the YDPA under the power delegated to him by the Emergency (Essential Powers) Act 1964 stated that a person tried under the regulation will be tried without jury and preliminary inquiry and this is against provisions of the CPC. Its validity was argued as being against Art. 8 of the Constitution. The argument was however, rejected by the Privy Council on the ground that emergency regulations could not be held to be unconstitutional because of Art. 150(6) - Teh Cheng Poh v PP: The issue was whether the Essential (Security Cases) Regulations 1975 issued by the YDPA were constitutionally valid and whether the YDPA could issue the same when he no longer had power to issue an ordinance. - Federal Court: While the ordinance-making power had come to an end, the Emergency Ordinance when made was valid, and it continued to subsist, therefore, the power conferred by it to frame regulations also subsist. The Regulations were treated as subsidiary legislation under the Ordinance. - Privy Council: On appeal, the 1975 Regulations were declared ultra vires the Constitution, and void on the ground that once Parliament had sat after the Proclamation, the YDPA was no longer left with power to make ‘essential regulations’ having the force of law. - The subsidiary legislation could however, be validated by the Parliament with a retrospective effect.

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Substantive Ultra Vires - Refers to the scope, extent and power conferred by the statute to make subsidiary legislation. - If power is conferred only to legislate under certain circumstances, the limits of the power must not be crossed. - If the power delegated is very broad and general, it will be difficult to regard any regulation as falling outside the rule-making power. - Test by Lord Diplock in McEldowney v Forde: - To determine the words used in the Act of Parliament itself to describe the subsidiary legislation which the delegate is authorised to make - To determine the meaning the subsidiary legislation itself - To decide whether the subsidiary legislation complies with that description

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Sec. 23, Interpretation Act: Any subsidiary legislation inconsistent with an Act of Parliament including the Act under which the subsidiary legislation is made shall be void to the extent of its inconsistency. Sec. 24, Interpretation Act: A subsidiary legislation shall be deemed to be done under the Act under which it has been made. Syed Ibrahim v Esso Production Malaysia: A person is empowered to make subsidiary legislation only when the Parent Act provides the person with such power. Ghazali v PP: Under the Sec. 118(5) of the Road Traffic Ordinance, the Board attached a condition to the licenses issued to Malays, that only a Malay driver should be employed to drive such a vehicle. The appellant was charged with breach of a condition attached to his license which prohibited his taxi from being driven by a person other than a Malay. The Board imposed such condition as a result of a general directive issued by the Minister of Transport under Sec. 107 of the Ordinance. The High Court held that the Board had acted ultra vires in imposing such condition as it had no power to do so. The authority of the Minister was limited to issuing directives on policy to be followed in determining applications, not matters arising thereafter.

Procedural Ultra Vires - The parent statute may lay down certain procedures for the subordinate legislator to follow in making it. - Non-compliance with the prescribed procedure may result in the subsidiary legislation being declared ultra vires; however this depends on whether the prescribed procedure is mandatory or directory in nature. - Wong Keng Sam v Pritam Singh Brar: Any breach or non-compliance with a rule which is not mandatory but only directory as being purely procedural does not give a person aggrieved thereby a legal right to redress in a court of law. - Subsidiary legislation is ultra vires if a mandatory requirement is not complied with: - A procedural norm requiring consultation with a specified body: Where the rule-making authority shall refer the draft rules to a statutory body and seek its advice - Requirement for pre-publication of draft rules and the prescribed mode of pre-publication has to be adopted substantially by the rule-making authority. - Raza Buland Sugar v Rampur Municipality: Although the Hindi text of the tax proposals were published in a newspaper printed in Urdu instead of Hindi, the court found that the mode of publication adopted was held to be substantial compliance as the text of the notice was in the language prescribed.

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When rules are laid before Parliament, and their effectiveness is made to depend upon Parliament passing an affirmative resolution - When draft rules are required to be laid before Parliament: A provision requiring that regulations ‘shall not be made unless a draft of the regulations has been laid before Parliament’ (R v Secretary of State for Social Services) - When a statute requires 3 months’ notice to be given to effectuate the rules Disobedience to a directory procedural rule only results in an irregularity not affecting the validity of the subsidiary legislation: - A simple laying procedure before Parliament without any further parliamentary action being required - The rule comes into effect as soon as it is made and ‘laying’ procedure takes effect subsequently. - If the Parliament disproves the rule, it will cease to be operative, but until that time it remains effective.

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Extended Ultra Vires Other grounds or restrictions on the general power to make subsidiary legislation.

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Retrospectivity: Regulations should not have retrospective effect unless the Parent Act expressly or by necessary implication confers a power to that effect. - Retrospective legislation disturbs vested rights of the people, which only the legislature should be allowed to do. - Art. 7(1), FC: Prohibits criminal law from having retrospective effect, but not civil law. - Sec. 20, Interpretation Act (Similar to Sec. 23(2), Singapore IA): The subsidiary legislation can operate retrospectively only to a date not earlier than the commencement of the Parent Act. - The subsidiary legislation must be published: No person shall be made or become liable for any penalty in respect of any act done before the date on which it is published. -

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However, Sec. 20 does not apply when: - There is an express provision to the contrary - There is something in the subject or context inconsistent with or repugnant to its application Wong Pot Heng v Kerajaan Malaysia: Where Sec. 20 of IA has been excluded; the power to make subsidiary legislation with retrospective effect must be given expressly to the person or body by the Section conferring power in clear and unambiguous words.

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Attorney General v Gold Storage (Singapore): In March 1977, an order known as the Port of Singapore, Authority (Property Tax) 1977, made under Sec. 28(2) of the Port of Singapore Authority Act 1964, was published in the Gazette. The order came into operation in October 1976, thus rendering it retrospective in nature, and therefore its validity was challenged. Held: The principle that subsidiary legislation cannot have retrospective effect in the absence of the Parent Act authorising it was modified in Singapore by Sec. 23(2) of IA, and on that basis, the order was found to be valid. Further, Sec. 28(2) of the Act gave the Minister power to make orders having retrospective effect.

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Exclusion of the courts - Subsidiary legislation cannot exclude jurisdiction of the courts and that access to the courts cannot be denied save by clear words in the statute. - The courts guard the right of the citizens to have recourse to the courts to settle their dispute. - R&W Paul v The Wheat Commission: Under the Wheat Act 1932, the Wheat Commission had power to make a bye-law to provide for the final determination of dispute to arbitration. The bye-law stated that all disputes should be referred to arbitration and that the Arbitration Act 1884 would not apply to such proceedings. The effect of the bye-law was that the courts were excluded from ruling on disputed questions of law arising during arbitration proceedings. Held: The Wheat Commission had no power to do so by making a bye-law without express authorisation to such effect in the Parent Act.

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Financial Levy - A charge or a financial levy cannot be imposed through administrative regulation under the general power to make regulation except when the Parent Act specifically confers power for the purpose. - A general grant of power does not warrant imposition of a financial levy through subsidiary legislation. - Howe Yoon Chong v Chief Assessor, Property Tax, Singapore: Under Sec. 63(e) of the Property Tax Act, the Minister has authority to make regulations ‘generally for the better carrying out of the provisions of this Part of the Act’. The Minister made a regulation levying a fee of S$20 for every year of the property inspected in the valuation list. Held: Sec. 63 did not give him power to levy fees, thus the Minister had acted ultra vires the Act, and the Property Tax (Fees) Regulations 1975 are null and void and of no effect.

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Unreasonableness - An implied restriction on subsidiary legislation is that it should not be unreasonable. - Kruse v Johnson: The courts should jealously watch the exercise of these powers and guard against their unnecessary or unreasonable exercise to the public disadvantage. - Test of unreasonableness: If the bye-laws were found to be - partial and unequal in their operation as between different classes - manifestly unjust - disclosing bad faith - involving oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men -

McEldowney v Forde: The Minister had power to make regulations for the ‘preservation of peace and the maintenance of order.’ He made a regulation saying that any person who became a member of ‘an unlawful association’, defined as one describing itself as a ‘republican club’ or ‘any like organisation howsoever described’, was guilty of an offence. A person was prosecuted for being a member of a republican club which was innocent of any unlawful activity. Held: The regulation was ultra vires on the ground of it being too vague and so arbitrary as to be wholly unreasonable.

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Arlidge v Islington: A bye-law obligated the landlord of a lodging house to cause every part to be cleansed in April, May and June of every year, or else a penalty will be imposed for its breach. Held: The bye-law was invalid as being unreasonable as it imposed an absolute duty on every landlord without regard to the landlord’s position.

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Air India v Nergesh Meerza: The subsidiary legislation for all pregnant women to retire early is discriminatory in the operation of subsidiary legislations, and contravenes Art. 14 of the Indian Constitution.

Vagueness, ambiguity and uncertainty - Foulkes, Introduction to Administrative Law (1976): Vagueness, ambiguity, arbitrariness, or uncertainty may render a regulation void, either in themselves or as aspects of unreasonableness or can be regarded as a separate ground of invalidity....