SUBSIDIARY LEGISLATION Part 2

Controls over subsidiary legislation

Controls over subsidiary legislation

By the following methods:

Preliminary control Parliamentary control Judicial control

1. Preliminary control

By consulting the effected groups and advisory bodies before making the subsidiary legislation.

This is more common in UK and US. In Malaysia, the Parent Act

determines whether consultation is mandatory or merely recommended.

By publication in the Gazette.

Section 86 Interpretation Act 1948 & 1967

(1) Subsidiary legislation made under any Act of Parliament, Ordinance, Enactment or other lawful authority shall, unless it be otherwise expressly provided in any Act of Parliament, Ordinance, be published in the Gazette and, unless it be otherwise provided in such subsidiary legislation, shall take effect and come into operation as law on the date of such publication.

(2) Any such subsidiary legislation may be made to operate retrospectively to any date not being a date earlier than the commencement of the Act of Parliament, Ordinance or Enactment under which such subsidiary legislation is made.

E.g. s 77(2) Legal Profession Act 1976: “Any rules made pursuant to this section shall not come into operation until they have been published in the Gazette”.

2. Parliamentary Control

1. Parliament can revoke or rescind the subsidiary legislation by repealing the Parent Act. (Since it was Parliament that authorised subsidiary legislation).

However, in practice this seldom happens.

Daihatsu (M) Sdn Bhd v PP [1987] 1 MLJ 88

Court: If a statute under which by-laws are

made is repealed, these by-laws are impliedly repealed.

The appellants were charged for using their premises for the trade of a motor car dealer without a licence from the municipal council --Majlis Perbandaran Petaling Jaya (MPPJ).

Contravened by-law 1(51) of Part VI of the Petaling Jaya Town Area (Amendment) By-Laws 1975.

The by-law was made pursuant to section 16(1) of the Town Boards Enactment which empowered the MPPJ to make such by-laws.

Section 166 of the Local Government Act 1976 repealed the whole of the Town Boards Enactment. By virtue of this section 166 thereby repealed section 16(1) of the Town Boards Enactment.

Held: The by-laws made by the MPPJ pursuant to the Town Board Enactment ceased to be valid on repeal of section 16(1) of the Enactment by section 166 of the Local Government Act 1976.

2. Laying procedure Subsidiary legislation has o follow

the procedure set by Parliament (if any).

E.g. S 36(2) Financial Procedure Act provides:

“Regulations made under this section shall when made have full force and effect and shall be laid before the Dewan Rakyat as soon as possible after they are made”.

E.g. S 8(2) Summons and Warrants (Special Provision) Act:

“Any rules made under this section shall be laid before each House of

Parliament”.

3. Parliamentary Scrutiny Committee To report to the Parliament of any

subsidiary legislation made. (effective in UK, India and Australia)

3. Judicial Control

Control by the courts. By applying the doctrine of ultra

vires (in Latin “beyond powers”). The rule under the doctrine of ultra

vires is that no one may overstep the boundaries of the power conferred to him.

It is the power of the High Court to exercise judicial review under the following grounds:

i. Subsidiary legislation is unconstitutional

ii. Parent Act is unconstitutionaliii. Substantive ultra viresiv. Procedural ultra vires

i. Subsidiary legislation is unconstitutional

Subsidiary legislation is inconsistent with a provision in the Federal Constitution.

In other words, it is ultra vires the constitution.

Effect: subsidiary legislation becomes void.

Exception: proclamations issued during emergency shall be valid notwithstanding it being inconsistent with the constitution.

Article 150. (1) FC:“If the YDPA is satisfied that a grave

emergency exists whereby the security, or the economic life, or public order in the Federation

or any part thereof is threatened, he may issue a proclamation of emergency making

therein a declaration to that effect.”

Teh Cheng Poh v PP [1979] 1 MLJ 50

The appellants were charged with possession of firearms or ammunition in a security area.

The Essential (Security Cases) (Amendment) Regulations 1975 were declared to be ultra vires the Constitution because it was contrary to Article 150 (2).

Once Parliament had sat on February 20, 1971, the YDPA no longer had any power to make Essential Regulations having the force of law.

ii. Parent Act is unconstitutional

The parent act which delegated legislative powers to the authority concerned is itself unconstitutional.

Therefore, any subsidiary legislation made pursuant to the parent act shall become void.

iii. Substantive ultra vires

The subsidiary legislation is ultra vires the parent act.

In other words, the subsidiary legislation goes beyond the scope of the authority conferred by the parent act.

Court has power to review the subsidiary legislation by virtue of Section 23(1) of the Interpretation Acts 1948 & 1967:

“Any subsidiary legislation that is inconsistent with an Act (including the

Act under which the subsidiary legislation was made) shall be void to the extent of the inconsistency.”

Ghazali v PP [1964] MLJ 156

S 118(5) Road Traffic Ordinance 1958:“… the Licensing Board in exercising its discretion under this section shall

give preference to an application from a Malay…”

The Board was therefore acting ultra vires in imposing a further condition that only a Malay driver could be employed on the vehicle

Court:It is clear law that no rule, regulation or by-law made under statutory powers must go beyond or be repugnant to the enactment under which they are made. It is also trite law that the validity of delegated legislation as a general rule can be canvassed by the Courts, and that in the absence of express statutory provision to the contrary, the Courts may inquire whether the rule-making power has been exercised in accordance with the provisions of the statute by which it is created.

Port Swettenham Authority v TW Wu Co [1978] 2 MLJ 137

Goods belonging to the resp in the custody of the appl went missing.

Appl enacted a by-law pursuant to the Port Authority Act 1963 to limit its liability.

Court By-law 91(1) of the Port Swettenham Authority

By-laws, 1965 is invalid as it is ultra vires section 29(1)(g) of the Port Authorities Act, 1963, in so far as it purported to limit the Port Authority's liability in respect of a loss occurring with the actual fault or privy of the Authority; and also because it did not only limit but wholly excluded the liability of the Port Authority for the loss of any goods caused by their own misconduct or negligence.

Section 29(1)(g) of the 1963 Act confers no power to exclude but only to limit liability.

iv. Procedural ultra vires

The subsidiary legislation was not made in accordance with the procedures laid down by the parent act.

The procedural requirement in the parent act must be a mandatory procedure in order for the subsidiary legislation to be declared invalid on the ground of procedural ultra vires.

Example: “…the authority shall consult the

affected group…” “Regulations made under this

section shall when made have full force and effect and shall be laid before the Dewan Rakyat as soon as they are made”

Sub delegation

Delegatus non potest delegare A delegate cannot further delegate

his power to someone else

Exception: when subdelegation is expressly authorised by statute.

Example: Article 144(5B) “… all the powers and functions of

the Public Services Commission or the Education Service Commission established under Article 139 and Article 141A … may be exercised by a board appointed by the YDPA”.

subdelegate

PUBLIC SERVICES COMMISSION

PUBLIC SERVICES DISCIPLINARY BOARD

How is subsidiary legislation repealed?

Eleventh Schedule, FC Subsidiary legislation may be

revoked, rescinded, amended, or varied by the same authority

S 87 Interpretation Acts “subsidiary legislation may at any

time be amended, varied, rescinded or revoked by the same authority and in the same manner by and in which it was made”