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ADMINISTRATIVE LAW

(LAW506)
JUDICIAL REVIEW: SUBSIDIARY LEGISLATION

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SUBSIDIARY LEGISLATION

• Delegated / subordinate legislation


• Laws made through delegated powers given by the
legislature to a body/person via a statute
• Sec 3 of the Interpretation Act 1948 & 1967 defines
it as:
• ‘Any proclamation, rule, regulation, order,
notification, by-law or other instrument made
under any Act, Ordinance or other lawful
authority & having legislative effect.’

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EXAMPLE OF SUBSIDIARY LEGISLATION
• S 601 of the Employment Act 1955:
• “The Minister may, by regulation…provide for the
entitlement of employees to, and for the payment
by the employer of - (a) termination benefits; (b)
lay-off benefit; (c) retirement benefits”
• The minister made the regulation known as the
Employment (Termination and Lay-Off Benefits)
Regulation 1980.

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WHY DO WE NEED TO CONTROL SUBSIDIARY
LEGISLATION (SL)
1. Unlike legislation through legislature, SL is drafted in
government chambers by anonymous civil servants
and promulgated suddenly without much publicity
or public notice.
2. No one may come to know about it until it is notified
and there may be no public discussion, no press
comments and no public opinion expressed on it.
3. This creates danger that , without restraints,
government may tend to misuse its power.

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CONTROLS OVER
SUBSIDIARY
LEGISLATION

JUDICIAL LEGISLATIVE
CONTROL CONTROL

PROCEDURAL SUBSTANTIVE

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SL - JUDICIAL CONTROL
• The courts have control over SL through judicial
review

• Judicial review is the process where the court reviews


the decision made by public bodies when they
exercise their administrative functions i.e legal, quasi-
judicial and administrative functions

• Based on Sec 23(1) & 87(d) of Interpretation Act.:


• Any SL inconsistent with an Act or Enactment shall
be void to the extent of inconsistency
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• The courts may declare the SL void under the ‘Ultra Vires’
doctrine on the following grounds:
1) Procedural
-Failed to follow a mandatory procedure in the enabling
statute
2) Substantive
-Law made beyond the limits of power conferred
3) Extended
- Other reasons

• Ultra Vires
• Latin for "beyond powers."
• It refers to conduct by a corporation/body or its officers
that exceeds the powers granted by law.
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WHAT IS JUDICIAL REVIEW?

• The process where the court reviews the decision


made by public bodies when they exercise their
administrative functions i.e legal, quasi-judicial and
administrative functions
• If the court finds and agrees that the administrator
has followed the law in making the decision, then
the decision will be upheld; if not, the court will
grant a remedy for the complainant against the
administrator

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1.
PROCEDURAL
ULTRA-VIRES

FAILURE TO FAILURE TO
OBSERVE OBSERVE
MANDATORY DIRECTORY
PROCEDURE = PROCEDURE =
VOID IRREGULAR

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HOWARD v BODINGTON
[1977] 2 PD 203
• The court held that:
• It is significant to determine whether the
Procedure in making subsidiary legislation was
mandatory or directory
• What’s the difference?
• If mandatory, failure to follow makes the SL void
• If directory, failure to follow makes the SL
irregular (can be fix)

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AGRICULTURAL, HORTICULTURAL AND FORESTY
INDUSTRY TRAINING BOARD v ATLESBURY
MUSHROOM LTD [1972]1 All ER 280

• The court held that:


• When a statute says that the rule-making
authority shall refer the draft rules to a body and
seek its advice as to the expediency or suitability
of the purposed rules before finalising them, the
rules made without observing the procedure are
ultra vires.

1111
R v SECRETARY OF STATE FOR SOCIAL
SERVICES ex p CAMDEN [1987]1 WLR 819
• Held:
• A provision requiring that the regulation shall not
be made unless a draft of the regulations has
been laid before Parliament and approved by a
resolution of each house, has been held to be
mandatory.

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WHAT IS SUBSTANTIVE ULTRA VIRES

• Refers to the scope, extent and range of power


conferred by the statute to make SL
• The power is conferred to legislate only with
respect to certain topics, or for certain purposes,
or in certain circumstances the limits of the
power must not be crossed.

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3 THINGS NEED TO BE CONSIDERED IN
DETERMINING THE VALIDITY OF SL
Per Lord Diplock in McEldowney v Forde (1969) 2 All
ER 1039
a) determine the meaning of the words used
in the Act of Parliament itself to describe
the SL which the authority is authorized to
make.
b) determine the meaning of the SL itself.
c) decide whether the SL complies with that
description

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2. SUBSTANTIVE ULTRA-VIRES

PARENT ACT ULTRA


SL ULTRA VIRES THE
VIRES THE FEDREAL
FEDERAL
CONSTITUTION
CONSTITUTION

SL ULTRA VIRES THE


PARENT ACT

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SL ULTRA VIRES THE FC
OSMAN v PP [1968] 2 MLJ 137
• 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 this
infringed Article 8.
• Held:
• Privy Council rejected the argument on the ground that
emergency regulations should not be held to be
unconstitutional because of Article 150 (6).
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• The Emergency (Criminal Trials) Regulations, 1964 inter
alia dispensed with the requirement of a preliminary
inquiry before trial, restricted the granting of bail and
made provision for trial by a judge sitting alone.
• On the other hand, Article 8(1) of the Constitution
provides that all persons are equal before the law and
entitled to the equal protection of the law. It was
contended by the counsel that the Emergency Regulations
amounted to a denial of the equal protection of the law
since persons tried under the Regulations were deprived
of the benefits of the procedure under the Criminal
Procedure Code and so were treated not equally but
differently from persons tried under that Code. He
therefore contended that they were inconsistent with the
Constitution and so invalid.
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• By article 150 of the Constitution the Yang di-Pertuan
Agong was given power in certain circumstances to
issue a proclamation of emergency, and, while such a
proclamation was in force, Parliament was given
power by article 150(5) notwithstanding anything in
the Constitution, to make laws with respect to any
matter if it appeared to Parliament that the law was
required by reason of the emergency. Article 150(6)
provided that subject to article 150(6A) (which is not
relevant to this case), no provision of any Act of
Parliament so passed should be invalid on the
ground of inconsistency with any provision of the
Constitution.
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PARENT ACT ULTRA VIRES THE FEDERAL
CONSTITUTION

JOHNSON TAN HAN SENG v PP


• The validity of the Essential (Security Cases)
Regulation 1975, was challenged, inter alia, on the
ground that Emergency (Essential Powers) Ordinance
1969 had lapse and ceased to be law by effluxion of
time and changed circumstances and therefore these
regulations made under it also became void.

1919
• Art 150(1) of the FC provides that if the Yang di-
Pertuan Agong is satisfied that a grave emergency
exists he may issue a proclamation of emergency.
On 15/5/1969, there were serious riots in Kuala
Lumpur and in one or two other areas and His
Majesty acting on responsible advice proclaimed an
emergency. His Majesty also promulgated the
Ordinance, inter alia, giving himself power to make
1975 regulations.

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• In the words of clause (3) of article 150 "a
proclamation of emergency and any ordinance
promulgated under clause (2) ... if not sooner
revoked, shall cease to have effect if resolutions are
passed by both Houses [of Parliament] annulling
such proclamation or ordinance
• ...", and in the words of clause (7) of the same
article "At the expiration of a period of six months
beginning with the date on which a Proclamation
of Emergency ceases to be in force, any ordinance
promulgated in pursuance of the Proclamation ...
shall cease to have effect ...".
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Held:
that an ordinance ceases to have effect if--
• revoked, or
• Parliament by resolution annuls it, or further
• if the proclamation in pursuance of which it was
promulgated has ceased to have effect and six
months have elapsed.
• The 1969 proclamation has not been revoked nor
annulled by Parliament. The ordinance has not been
revoked nor annulled. Therefore they are still in force.
• Hence, the Ordinance did not ultra vires Art 150(1) of
the FC.
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SL ULTRA VIRES THE PARENT ACT

GHAZALI v PUBLIC PROSECUTOR


Held:
• Under Section 118 (5) of the Road Traffic Ordinance
1958, the Licensing Board in exercising its discretion
under section 118 shall give preference to an
application from a Malay. The board attached a
condition to the licences issued to Malays that only
a Malay driver should be employed to drive such a
vehicles.

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• The High Court hold that the Board acted ultra
vires in imposing the said condition. 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 matter
arising thereafter.

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3.
OTHER REASONS
FOR
JUDICIAL CONTROL
OVER
SUBSIDIARY
LEGISLATION

FINANCIAL LEVY
RETROSPECTIVE OUSTER
SUB-LEGIS UNREASONABLENESS
LAW – CLAUSE
CANNOT SUB-LEGIS
NO RETRO LAW (STATUTORY
IMPOSE LEVI @TAX CANNOT HAVE
UNLESS EXCLUSION
UNLESS PROVIDED UNREASONABLE
STATED IN OF JUDICIAL
EXPRESSLY PROVISION
PARENT ACT REVIEW)
BY PARENTS ACT

CHESTER
AG V MP PILLAY
BATESON ARLIDGE
VS VS
V
COLD STORAGE PP
COMMISSIONERS OF ISLINGTON CORP
CUSTOMS AND
EXCISE
v
CURE AND
DEELEY LTD 2525
1) RETROSPECTIVE LAW

AG v COLD STORAGE (SINGAPORE) PTE LTD


[1979]1 MLJ 277
• On 19th March 1977, the Minister for
Communications made the Port of Singapore
Authority (Property Tax) Order 1977, which was
published in the Gazette. The order was deemed to
have come into operation on 28th Oct 1976.

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• The order was thus retrospective in nature and
therefore its validity was challenged.
• Held:
• Section 28(2) of the Act gave the Minister power
to make orders having retrospective effect.

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2) EXCLUSION/OUSTER CLAUSES
CHESTER v BATESON [1920] 1 KB 829
• Regulation 2 A (2.) of the Defence of the Realm
Regulations, provides that "no person shall, without the
consent of the Minister of Munitions take .... any
proceedings for the purpose of obtaining an order or
decree for the recovery of possession of, or for the
ejectment of a tenant of, any dwelling-house”.
• Held:
• A war-time case, the court declared a regulation
invalid because it forbade property owners from
having access to courts, without the consent of the
Minister, to eject tenants from their houses if they
were employed in work connected with war material.

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COMMISSIONERS OF CUSTOMS AND EXCISE v
CURE AND DEELEY LTD [1962]1 QB 340
• In this case the commissioners made a regulation in which
the commissioners might themselves determine the tax
due and that the amount so determined by them was to
be deemed to be the proper tax payable. Access to courts
was barred in such a case.
Held:
• The regulation ultra vires on the ground, inter alia, that
it 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.

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3) FINANCIAL LEVY
AG V WILTS UNITED DIARIES [1922] KB 887
• The food controller was empowered to “… make
orders regulating or giving directions with respect to
productions, manufacture, treatment, use… of any
article”.
• The appellants were asked pay the controller a levy
per gallon of milk purchase.
• The court held that the levy imposed was invalid
because there was no express provision in the Parent
Act which allowed any kind of levy.
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4) UNREASONABLENESS

KRUSE V JOHNSON [1898] 2 QB 91


• Test of unreasonableness:
1) partial and unequal in their operation as between
different classes
2) manifestly unjust
3) disclosing bad faith
4) involving oppressive or gratuitous interference with
the rights of those subject to them as could find no
justification in the minds of reasonable men
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ARLIDGE v ISLINGTON CORPERATION
[1909] 2 KB 127
• A by-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 by-law.

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• Held:
• The court declared the by-law to be invalid as being
unreasonable as it imposed on absolute duty on
every landlord to cause the premises to be cleansed
without regard contractual obligations between the
landlord and the tenants.
• If the landlord was to obey the by-law, he
contended that he had not the right to enter
the house and that he would commit a trespass if
he did.

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SL- LEGISLATIVE CONTROL

• Requires the SL made to be laid before the


legislature (Parliament/State Legislative Assembly)
• Laying Procedure: Affirmative
• SL ceases to have effect unless, within the
prescribe period, the legislature passes a
resolution affirming it
• Laying Procedure: Negative
• SL is effective, unless the legislature passes a
resolution annulling it

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