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Subsidiary Legislation, Parent Act enacted in Parliament delegate powers,…
Subsidiary Legislation
Development
- Modern state had to manage large part of socio economic thus need more legislation > Pressure of work to legislature and had to discharge + Legislative not able to cope with legislative program fully + Legis saves time by confine itself to broad principles and leaving the details to be formulated by concerned administrative authorities
- If law were to contain all details, will be cumbersome and common man might difficult to understand > Detail tend to be technical which understood by professional expert specialised in the matter thus only them who work them out rather than legislators who are generalist and not specialist + Difficult to work out necessary details prior legislation enacted + Had to consult interests affected
- System of delegating legislation is flexible, elastic, experimenntal, expeditious (Advantage) > Socio economic schemes at stage of legislation usually experimental in nature - If detail has been included in statute, then each time a change, legislature have to pass an amending legislation - With delegated legislation, changes in details easier to be made without having legislature to enact amend legislation
- There is a need to meet emergency situation > Legislature cannot suddenly churn out legislation (keluarkan law) or convene (bersidang) at short notice - Administration armed with some 'stand-by' power to take action at short notice/ promulgating (isytihar) necessary rule in the circumstances
Controls over SL has 4 types of control:
- Judicial control
- Legislative control
- Publication control
- Consultation of interest
(1) Judicial control
Court control SL on basis:
a. Parent act constitutional or not which delegates power of subsidiary legislation
b. SL constitutional or not
c. SL ultra vires parent act or not
(a) If statute@ parent act unconstutional, cannot be the source of delegated legislation
- Johnson Tan Han Seng v PP: the validity of the Essential (Security Cases) Regulation 1975 was questioned because its parent law, the Emergency (Essential Powers) Ordinance 1969, was argued to have ceased to be law due to changes in circumstances and the passage of time.
FC: It was the executive's prerogative, not the courts', to determine whether the proclamation of emergency under Article 150(1) of the Federal Constitution should end.
(b) Delegated legislation will be strike down if conflict with consti provision
- Osman v PP: Certain emergency regulations made under the Emergency (Essential Powers) Act 1964 were challenged as unconstitutional because discriminatory nature and thus infringed Art 8.
Privy Council: emergency regulations could not be held to be unconstitutional because of A150(6)
- PP v Khong Teng Khen: Emergency (Security Cases) Regulations 1975 were challenged as being inconsistent with A8.
-FC: the regulations were not inconsistent with A8, and even if inconsistent, the regulations were saved by A150(6) on the authority of Osman.
Extended facts: In 1969, 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)
- Teh Cheng Poh v PP: 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?
FC: Making power had come to an end, the Emergency Ordinance when made was valid and it continue to subsist and, therefore the power conferred by it to frame regulations would also subsist.
PC: Regulations ultra vires with constitution hence become void. Because once parliament had sat after the proclamation, the YDPA was no longer left with any power to make ‘essential regulations’ having force of law.
*Consequently, parliament enacted the Emergency (Essential Powers) Act 1979, replacing the Ordinance. All the subsidiary legislation made under the Ordinance was validated and adopted under the said Act.
(c) It goes beyond the powers conferred by the parent act on the concerned authority making delegated legislation.2 type of ultra vires:
- Substantive ultra vires- Delegated Legislation goes beyond scope of authority conferred by parent act
- Procedural ultra vires- Not comply prescribed procedure in making Delegated Legislation
[Procedural ultra vires]
- Parent act lay down certain procedures to be followed by subordinate legislator in making SL > Non-compliance making SL ultra vires, if it is mandatory procedural
*Non compliance directory procedural will only result irregularity not validity of SL
- {simple laying procedure before parliament without further parliamentary action being required as regards the rules is merely directory}
Lachmi Narain v Union of India: If a statute requires that three months’ notice be given to effectuate the rules, then giving of such notice is mandatory.
- {the courts tend to treat a procedure of requiring consultation with a specified body as mandatory}
Banwarilal Agarwalla v State of Bihar: 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
[Substantive ultra vires]
7 Principles:-
- Subordinate agency may legislate to the extent legislative power is conferred by parliament
- SL made by state gov must consistent with federal law
- Rule invalid if conflict with statutory provision
- Regulation should not have retrospective effect (unless parent act express or by necessary implication confer power)
- Jurisdiction of court on SL not excluded
- A charge or financial levy can only be imposed through administrative regulation if parent act specifically confer power for that
- Unreasonableness
(2) Legislative control
It is the legislature which delegates legislative power to the administration so must supervise and ensure trust reposed to executive is properly executed
2 main stages in the scheme of parliamentary supervision:
a. Laying of delegated legislation before the legislature
b. Scrutiny of the DL by parliament scrutiny committee and debate/ discussion on the floor of the House
(a) Laying procedure
'Propose /Inform the DL to be made/ that been made'
- DL be laid before House in draft form so House know what executive proposed to do
- DL be laid after been made in which DL becomes effective before legistature is informed
In MY, 3 laying formula.(1) Simple laying: The laying procedure is informational in nature and directory + After laying, no debate/ discussion. Failure to lay regulation before Parliament not affect validity although may amount to technical breach of statute
- S8(2) of the Summonses and Warrants (Special Provisions) Act 1971 – ‘Any rules made under this section shall be laid before each House of Parliament’
- S36(2) of the Financial Procedure Act – ‘Regulation 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’
(2) Laying with negative resolution:
- Control of Imported Publications Act 1958 (Section 19(3))
-Regulations made by the Minister must be published in the Gazette.
-These regulations must then be presented to the Dewan Rakyat.
-The Dewan Rakyat can annul the regulations (fully or partly) during its next meeting.
-If annulled, the regulations become void from the date the annulment is published, but actions taken earlier under those regulations remain valid.
Now repealed by the Printing Presses & Publications Act 1984, which removed the requirement to present regulations to the Dewan Rakyat.
- Elections Act 1958 (Section 17) and Wages Councils Act 1947 (Section 20(1))
-Minister-made regulations to be presented to the Dewan Rakyat.
-The regulations can be annulled by the Dewan Rakyat within 40 days of being presented.
(3) Laying subject to affirmative resolution
- Sales Tax Act 1972
-s15(1) The minister has the power to fix the rates of sales tax from time to time
-s15(2) Order made in (1) must be laid in next meeting of House of representative. If the House does not confirm the order within 10 days (or any extended period set by the House), the order will no longer have effect.
- s46(2) of the Exchange Control Act
-All regulations must be presented to the Dewan Rakyat as soon as possible and will only remain in effect if approved by resolutions of Dewan
(b) Parliamentary Scrunity CommitteeIn MY, no similar scrutiny committee mechanism has been established in parliament.In Britain,
Role: As the parliament's watchdog on delegated legislation.
Function: The committee reviews every statutory instrument (or draft) to determine if it requires the House's attention for specific reasons (a)-(i).
- If an issue arises, the committee seeks an explanation from the relevant department and reports to the House.
- Further action depends on individual members raising the matter in the House; the committee itself takes no further steps.
(3) Publication control
'Ignorance of law is no excuse' is fmaxim apply for law that is properly publicised, so people have opportunity to know the law.
In MY, no general statutory provision in Malaysia requiring publication of delegated legislation.
- Originally s18(2) Interpretation Act 1967 SL must be published in federal or state gazette but this provision by Act 27 (Revision of Law Act 1968)
- Gaming Tax Act 1972
-s2(1) the minister may impose a gaming tax ‘by order published in the gazette’
-s2(3) the minister ‘may make regulations’
- Sales Tax Act 1972
-Section 15(1): The Minister can set sales tax rates via an order published in the Gazette.
-Section 61: The Minister can create regulations.
M Ratnavale v Govt of the Federation of Malaya
- Under the Delegation of Powers Ordinance 1952, the High Commissioner could delegate powers only via notification in the Gazette.
- Court’s Decision: Delegation is valid only when the notification is published in the Gazette, making publication the essential act.
Interpretation Acts 1948 & 1967
- Section 18(2): Publication in the Gazette gives sufficient notice of any matter, but this is declaratory in nature.
- Section 19(1): Subsidiary legislation comes into force on the date specified in it or, if no date is specified, the day after publication in the Gazette.
- Section 19(2): Subsidiary legislation is effective immediately after it commences.
(1) and (2) together, these sections suggest that regulations can take effect immediately without prior publication in the Gazette.
- Section 20 (Proviso): No penalties apply for actions done before the regulation is published.
The provision uses the word ‘publication’ and not publication in the gazette.Whether publication in the Gazette is mandatory or directory depends on the wording of the statute, and most regulations take effect upon publication unless stated otherwise.
The Gazette has several parts. Relevant for subsidiary legislation:
- Legislative Supplement A: Contains Royal Proclamations, Orders, rules, regulations, and bye-laws (prefix: PU(A))
- Legislative Supplement B: Contains other subsidiary legislation not in Supplement A (prefix: PU(B))
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Parent Act enacted in Parliament delegate powers, creating subsidiary legislation
s3 Interpretation Act 1948- rule, order, regulation etc made under an Act of legislature and has legislative effect
Most used term is rule and regulation
Order and notification: When power conferred to do some specified act
If general, then it is administrative in nature/ not subsidiary legislation
Bye-law: For legislation by municipal (town/ district body) or such other bodies
Example adminst power in no sense legislative:
-power to issue particular command, license, penalty, premise, power to inquire
Power to issue directive or directions may be either legislative or administrative in character/nature
*Directive is adminst if issued to specific body on policy matters)
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