Topic 5 Subsidiary Legislation PDF

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TOPIC 5 SUBSIDIARY LEGISLATIONDEFINITIONS3 of the Interpretation Act 1948 – subsidiary legislation is defined as meaning ‘any proclamation, rule, regulation, order, notification, bye-law, or other instrument made under any Act, Enactment, Ordinance or other lawful authority and having legislative ef...

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TOPIC 5 SUBSIDIARY LEGISLATION DEFINITION S3 of the Interpretation Act 1948 – subsidiary legislation is defined as meaning ‘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’ It is made under an Act of the legislature & legislative effect FACTORS CONTRIBUTE ITS DEVELOPMENT 1. The modern state discharges multifarious functions; it has to come to manage a large part of the socio economic life of the people 2. If a law were to contain all the details, it would become very prolix and cumbersome, and the common man might find it difficult to understand. 3. The system of delegated legislation has the advantage of flexibility, elasticity, expedition and experimentation. 4. There is a need to meet emergency situations. CONTROL OVER SUBSIDIARY LEGISLATION 4 types of controls; Judicial control Legislative control Publication control

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JUDICIAL CONTROL - Through the process of judicial review, the Court exercises its "inherent power" to scrutinise delegated legislation, and can declare it to be invalid in whole or in part if it is illegal, irrational or procedurally improper. - The courts exercise control over subsidiary legislation on a number of grounds; 1. Whether parent act which delegates the power of subsidiary legislation is itself constitutional or not? If the statute is unconstitutional then it cannot be the source of any delegated legislation. Case: Johnson Tan Han Seng v PP FACT: Validity of the Essential (Security Cases) Regulation 1975 was challenged on the ground that the Emergency (Essential Powers) Ordinance 1969 had lapsed and ceased to be law by effluxion of time and changed circumstances and therefore regulations made thereunder also became void. FC: it was the for the executive and not for the courts to decide whether the proclamation of emergency under A150 (1) should or should not be terminated.

2. Whether the subsidiary legislation is constitutional or not? - The court will strike down delegated legislation if it comes in conflict with a constitutional provision. Case: Osman v PP FACT: Certain emergency regulations made under the Emergency (Essential Powers) Act 1964 were challenged as unconstitutional on the ground that these were of a discriminatory nature and thus infringed A8. Privy Council: emergency regulations could not be held to be unconstitutional because of A150(6) - YDPA proclaimed an emergency & promulgated the Emergency (Essential Powers) Ordinance 1969. - YDPA continued to issue regulations under the ordinance of 1969 even after 1971, although under A150(2), his power to issue an ordinance came to an end with the sitting of parliament. (Parliament sat on 20 Feb 1971) Case: Teh Cheng Poh v PP [1979] 1 MLJ 50 ISSUE: Whether the regulations of 1975 were constitutionally valid and could YDPA issue the same when he no longer had the power to issue an ordinance? Privy Council: the regulations to be ultra vires the constitution and hence become void on the ground that once parliament had sat after the proclamation, the YDPA was no longer left with any power to make ‘essential regulations’ having force of law 3. Whether the subsidiary legislation is ultra vires the parent act or not? Subsidiary legislation can be challenged before the courts on the ground that it is ultra vires the parent act, ie it goes beyond the powers conferred by the parent act on the concerned authority making delegated legislation. 2 types of ultra vires; Substantive ultra vires – the delegated legislation goes beyond the scope of the authority conferred by the parent act Procedural ultra vires – the prescribed procedure is not complied with while making delegated legislation. Substantive ultra vires Principle 1 Legislative power belongs to parliament and that any other subordinate agency has no power to legislate except to the extent that legislative power is conferred thereon by parliament making a law

S23(1) of the Interpretation Acts 1948 & 1967 any subsidiary legislation which is inconsistent wit an Act of Parliament ‘shall be void to the extent of inconsistency’ S25 of the Interpretation Act subsidiary legislation shall be deemed to be made under ‘all powers thereunto enabling, whether or not it purports to be made in exercise of any particular power or powers’ Case: Ghazali v PP FACT: S118(5) of the Road Traffic Ordinance 1958 – the Licensing Board in exercising its discretion under s118 ‘shall give preference to an application from a Malay’. The Board attached a condition to the licences issued to a Malays that only a Malay driver should be employed to drive such vehicle. HC: the Board acted ultra vires in imposing the said condition as it had no power to do so Principle 2 Subsidiary legislation made by the state government must consistent with a federal law. Article 75 FC If any State law is inconsistent with a federal law, the federal law shall prevail and the State law shall, to the extent of the inconsistency. Case: City Council of Georgetown v. Government of the State of Penang FACT: the Municipal (Amendment) (Penang) Enactment 1966 was passed by the Penang State Legislature to administer municipal affairs of the State. The petitioner claimed that the Enactment and related Orders were inconsistent with Local Government Elections Act 1960 HELD: any subsidiary legislation made by the state government inconsistent with a federal law will be invalid. Principle 3 A rule is invalid if it comes in conflict with a statutory provision Case: Datin Azizah bte Abdul Ghani v Dewan Bandaraya Kuala Lumpur FACT: S23(1) of the Federal Terrotory (Planning) Act 1982 gave a right of appeal to the applicant for planning permission against an order of the Datuk Bandar. A rule made thereunder gave a right of appeal not only to the applicant but also others like owners of the land adjoining the land. HELD: the rule was inconsistent with s23(1). The rule in question was valid only to the extent that it made provision for an applicant to file his appeal Principle 4

Regulations should not have retrospective effect unless the parent act expressly or by necessary implication confers a power to that effect A7(1) FC – prohibition on enactment of ex post facto laws S20 of the Interpretation Acts 1948 & 1967 subsidiary legislation may be made to operate retrospectively ‘to any date’ which not earlier than ‘the commencement of the Act’ under which it is made - Subject to the qualification that no person shall be made or shall become liable to any penalty in respect of any act done before the date on which subsidiary legislation was published Principle 5 Exclusion of courts - Jurisdiction of the courts should not be excluded through subordinate legislation and that access to the courts is not to be denied saved by clear words in the statute. Case: Commissioner of Customs and Excise v Cure & Deeley Ltd FACT: Finance Act 1940 gave Customs and Excise power to make any law they wanted. Also, they can determined the amount of tax and access to court was barred in such a case. HELD: This was wrong as barred the subject from having access to the court to have the issue determined there, and that this was repugnant to the Act and its general nature, objects and scheme. Principle 6 Financial levy - A charge or a financial levy cannot be imposed through administrative regulation under the general power to make regulations except when the parent act specifically confers power for the purpose. *A type of taxation system on financial institutions, in which subjects are forced to pay government taxes over and above any normal taxes they may incur. Case: AG v Wilts United Dairies FACT: A regulation empowered the Food Controller to make ‘orders regulating or giving directions with respect to the production, manufacture, treatment, use, consumption, transport, storage, distribution, supply, sale or purchase’ of any article. Under this power, he issued an order that no one should deal in milk without licence. The appellant were granted licence on the condition that they paid to the controller a levy per gallon of milk purchased HELD: the charge invalid. Principle 7 Unreasonableness

The test of ‘unreasonableness’: Case: Kruse v Johnson HELD: ‘if, for instance, they (bye-laws) were found to be partial and unequal in their operation as between different classes; if they were manifestly unjust; if they disclosed bad faith, if they involved such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men, the court might well say, ‘parliament never intended to give authority to make such rules, they are unreasonable and ultra vires’. Case: Arlidge v Islington Corporation FACT: A bye-law obligated the landlord of a lodging-house ‘in the month of april, may or june in every year’, to cause every part of the premises to be cleansed. Penalty was imposed for breach of the bye-law. HELD: the bye-law to be invalid as being unreasonable as it imposed an absolute duty on every landlord to cause the premises to be cleansed without regard to the position in which the landlord might be. He might be quite unable to carry out the work without either breaking a contract or committing a trespass Procedural ultra vires - The parent act may lay down certain procedures for the subordinate legislator to follow while making subsidiary legislation. - Non-compliance with the prescribed procedure may result in making the subsidiary legislation ultra vires - However it depends on whether the court regards the procedural requirement as mandatory or directory - mandatory- not follow will be invalid ; directory not follow may not affect validity - A simple laying procedure before parliament without further parliamentary action being required as regards the rules is merely directory - On consultation, the courts tend to treat a procedural norm requiring consultation with a specified body as mandatory. Case: Banwarilal Agarwalla v State of Bihar HELD: When a statute says that the rule-making authority shall refer the draft rules to a statutory body and seek its advice as to the expediency or suitability of the proposed rules before finalising them, the rules made without observing the procedure are ultra vires Case: Lachmi Narain v Union of India HELD: If a statute requires that three months’ notice be given to effectuate the rules, then giving of such notice is mandatory...