Control over Subsidiary Legislation : Judiciary (Substantive Ultra Vires)

Time is running short so I'll be making just a brief summary of this sub topic aite :D

Substantive Ultra Vires

Definition

S UV refers to the scope, extent and range of power conferred by the statute to make SL. It is based on the principle that legislative power belongs to the Parliament and that any other subordinate agency has no power to legislate except to the extent allowed by the Parent Act. In simpler words, it could not exceed the scope of power as provided in the Parent Act.

                                                             McEldowney v Forde 

The judge in this case suggests the threefold test in order to ascertain the validity of a SL. The test is :

1) Court will determine the words used in the Parent Act that describes the subordinate legislation which the delegate is allowed to make

2) Then the Court will determine the meaning of the SL

3) Finally the Court will decide whether the SL complies with the description in the Parent Act.

The Malaysian Courts too have been firm in applying this doctrine, from the case of Wong Pot Heng v Gov. of Malaysia, the Court held that they have the jurisdiction to declare any SL that ultra vires the Parent Act as invalid.

Provisions

1) S. 23(1) Interpretation Act : Any SL inconsistent with Parent Act shall be void to the extent of inconsistency.

2) S. 87(d) Interpretation Act : No SL shall be inconsistent with Parent Act.

The types of Substantive Ultra Vires

I made an acronym for this, so that it's easier to remember, for me at least. It is :

F U R U E, and it stands for..

F : Financial levy

U : Unreasonableness

R : Retrospective

U : Ultra vires

E : Exclusion of Court

Financial Levy

A financial levy may not be imposed in a SL unless such power is expressly allowed in the Parent Act. S.44 of the Interpretation Act further states that in order for a SL to impose financial levy, the Parent Act has to allow such levying of fees and charging to be done.

                                               Attorney-General v Wilts United Dairies

In this case the Parent Act does not state anything to allow the SL to impose financial levies. However so, when the Respondent wants to make a licence to sell milk the Controller (Subsidiary Legislator) made a rule that the Respondent has to pay levy for every gallon of milk sold in order for him to get the licence.

Decision : Court held the Collector's action is invalid as no express provision in Parent Act to allow SL to impose financial levy.

Unreasonableness

It is implied in every SL that the SL shall not be unreasonable. Unreasonable was defined in the case of Kruse v Johnson as anything in the SL that is impartial, unequal, manifestly unjust, disclosed bad faith, and oppressive so as to find no justification in the minds of reasonable men. It was said that Parliament could never have intended to give authority to make such rules, they are unreasonable and ultra vires

                                                                McEldowney v Forde

In this case, there was a provision in the bye-law stating that anyone who is a member of any unlawful association shall be found guilty of an offence. Unlawful association refers to any Republican Club or 'any like organisation'. A person who was a member of a Republican Club which was innocent of any unlawful activity was prosecuted.

Decision : Court held that the SL was too vague and so arbitrary as to be unreasonable.

Retrospectivity

It is an implied restriction in SL that it shall not have retrospective effect unless expressly provided in the Parent Act. Section 20 of the Interpretation Act provides that SL may be made to operate retrospectively to any date not earlier than the coming of the Parent Act.

                                                      Attorney-General v Cold Storage

In this case the Parent Act was enacted in 1964 and the bye-law was made in 1976. The bye-law was to have a retrospective effect to the date of the coming of the Parent Act. The respondent argued that by doing that the claimant had acted above their powers.

Decision : Since the Parent Act allows bye-laws made to have retrospective effect, the bye-law was valid.

Ultra vires (Subsidiary Legislation ultra vires the Parent Act)

This is when the SL makes bye-laws which exceeds the extent allowed by the Parent Act.

                                                         Re Lee Kian Soo, An Architect 

In this case, the Parent Act empowered the Boards of Architect to strike an architect's name of the list of they were found 'guilty of any act or conduct' which in the Board's opinion is infamous any professional conduct. However so, the bye-law made pursuant to this Act, specifically in Section 13 of the Architect Bye-Law defined what was misconduct on the part of an architect. The aggrieved party claims that the SL ultra vires the Parent Act on the ground that it has removed the Board of Enquiry's opinion in deciding what was an infamous conduct by limiting it to whatever is provided in Section 13 of the bye-law.

Decision : Court held that the bye-law was invalid as it exceed the scope of power allowed by the Parent Act.

Exclusion of Courts

Any SL which excludes the Court in reviewing the decision made via SL is invalid unless the Parent Act allows for such exclusion.

                                         Commissioners of Custom & Excise v Cure & Deeley

In this case the SL had exclude the power ofteh court to revise the decision made by the Commissioner.

Decision : Court held that the SL is void because it violates the right of an individual to make an appeal to the court of law and it contradicts the Parent Act.


So.. F U RU E FTW! :D